Supreme Countdown

Supreme Court Strikes Down Anti-Sex Worker Law Limiting HIV Prevention Efforts

It sounded a lot like “no promo homo” – the kinds of restrictions the late U.S. Senator Jesse Helms once favored, barring federal funds to any organization that “promoted” homosexuality.

This time around, the federal government had a “no promo prostitution” policy on funding global HIV/AIDS programs. In a 6 to 2 vote (with Justice Elena Kagan recused), the U.S. Supreme court said the policy violates the First Amendment.

That was good news in a couple of ways. It was good news to the protectors of civil liberties, of course. But it was also a good sign to see Chief Justice John Roberts lead the majority and carry conservative Justice Samuel Alito along with him.

Two other conservative–justices Antonin Scalia and Clarence Thomas—dissented. The splitting of the court’s conservative vote bodes well for the possibility that the court will declare Proposition 8 and the Defense of Marriage Act (DOMA) unconstitutional, too. (Those decisions are expected out sometime next week.)

In writing the majority opinion in Agency for International Development (AID) v. Alliance for Open Society International (AOSI), Roberts said that, while the constitution provides Congress with the authority to impose limits on the use of funds, it is a “basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say.”

At issue was a policy passed by Congress in 2003 to authorize billions of dollars in funding for “Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act.” Congress imposed two conditions on any non-governmental organization (NGO) receiving federal funding for its global AIDS effort. One condition was that the NGO could not use the federal funds “to promote or advocate the legalization or practice of prostitution or sex trafficking.” The second condition was that the recipient of federal funds has “a policy explicitly opposing prostitution and sex trafficking.”

NGOs objected on the grounds that they did outreach to high risk prostitutes who might be distrustful of NGOs that “explicitly” stated their opposition to prostitution. (The Act required that the president’s program for addressing AIDS globally promote abstinence, encourage monogamy, increase the availability of condoms while educating men and boys about the risks of using prostitutes.) And they worried the policy could have a chilling effect on their own conversations and writings generally about AIDS prevention to prostitutes and in countries where the practice is less stigmatized.

The AOSI and other NGOs working overseas sued, challenging the stipulation as a violation of the group’s First Amendment rights. The Second Circuit U.S. Court of Appeals agreed.

In his majority opinion, Roberts noted that NGOs were free to reject federal funding for their activities, but that Supreme Court precedent has held that the federal government “‘may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit.’”

In this case, said Roberts, rebuffing Justice Antonin Scalia’s dissent, the requirement that NGOs have a “explicit” policy opposing prostitution “is an ongoing condition on recipients’ speech and activities, a ground for terminating a grant after selection is complete… It is about compelling a grant recipient to adopt a particular belief as a condition of funding.”

No LGBT-related organization submitted a brief in the case, but Jon Davidson, legal director for Lambda Legal, called it an “important and welcome ruling.”

“The decision helps ensure that the government not overreach by limiting who can receive government funds based on whether they agree with the government on unrelated issues,” Davidson told Queerty. “It means that, for example, National Endowment for the Arts recipients cannot be required to express the view, as a condition of getting the funding, that life begins at conception or that marriage should be limited to being between a man and a woman.”

The ACLU filed a brief asserting that “The First Amendment prohibits the government from imposing a system of ideological conformity” and that the government “may not use its spending power to impose ideological oaths.”

The American Foundation for AIDS Research (AmFAR) also praised the decision. It was one of more than 200 groups, including AIDS United and the Elton John AIDS Foundation, that joined a brief against the policy.

Lisa Keen, co-author of Strangers to the Law: Gay People on Trial, will be posting nearly daily on legal matters leading up to and beyond the Supreme Court decision. Her coverage on this and other issues is also available at