"Nongovernmental organizations, including faith-based organizations, with experience in health care and HIV/AIDS counseling, have proven effective in combating the HIV/AIDS pandemic and can be a resource in assisting indigenous organizations in severely affected countries in their efforts to provide treatment and care for individuals infected with HIV/AIDS." — U.S. Code §7601(23)For better or worse, it's an established practice for public funds to be spent through select private organizations with expertise in a given area. The question—which came before the Supreme Court again recently—is:
To what extent can the views and practices of these private organizations factor into their eligibility to receive federal funds?
A Vital Distinction
Before tackling the fresh June 2013 decision, it's necessary to go back to another case decided in May 1991: Rust v. Sullivan. The big controversy back then was whether Title X funds for family planning and sexual health could be denied to providers who merely recommend "abortion as a method of family planning." The Supreme Court held that such restrictions are constitutionally permissible because, among other facts:
"The regulations do not force the Title X grantee, or its employees, to give up abortion-related speech; they merely require that such activities be kept separate and distinct from the activities of the Title X project." — Rust v. SullivanThe key here is distinguishing "project" from "grantee." Rust established that the government may place restrictions (even speech restrictions!) limited to the project receiving public funds, but technically left open the question of whether the government may apply such restrictions in an unlimited way to the grant-receiving organization as a whole. (From a logical standpoint, saying that something is permissible when X does not imply that it's impermissible when not X.)
The New Question...
In 2003, the first major piece of legislation was passed to make the U.S. President's Emergency Plan for AIDS Relief (PEPFAR) a reality. The resulting law contained two important restrictions. The first:
"No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to promote or advocate the legalization or practice of prostitution or sex trafficking." — 22 USC § 7631 (e)Not a big deal, since Rust already gave constitutional blessing to limiting the speech of programs benefiting from federal funding. The second restriction was much more controversial:
"No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking" — 22 USC § 7631 (f)Yes indeed, this is going beyond program speech restrictions by placing restrictions on the speech of grantee organizations as a whole. Is this constitutionally permissible?
...And Its Answer
Nope! Last week, the decision for Agency for International Development v. Alliance for Open Society International clarified that speech restrictions must remain limited to projects, not expanded to encompass whole organizations.
"[T]he Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution."This is important for any and all private organizations that receive government funds, not just ones who wish to remain neutral regarding prostitution (or who have the gall to consider whether legalizing and regulating prostitution might *gasp* help with the fight against HIV). The immediate fallout from this decision is minimal. The status quo won't change much, but that's why it was such an important decision!
"In so doing, it violates the First Amendment and cannot be sustained." — Agency v. Alliance, Opinion of the Court
If things had gone the other way, all faith-based public service organizations would have been in danger of losing federal assistance because their larger, religious goals would have been thrown together with their secular goals, entangling government money with religion. At the same time, Planned Parenthood would likely lose their funding for non-abortion services because of widespread public disapproval of abortions carried out by a separate, privately funded part of that organization. There would be negative fallout from the perspective of nearly everyone.
Justice Scalia wrote a dissent in Agency v. Alliance, with Justice Thomas joining him.
"This Policy Requirement is nothing more than a means of selecting suitable agents to implement the Government’s chosen strategy to eradicate HIV/AIDS. That is perfectly permissible under the Constitution." — Agency v. Alliance, DissentHis lead example? Hamas. Hamas! Seriously.
"One of the purposes of America’s foreign-aid programs is the fostering of good will towards this country. If the organization Hamas—reputed to have an efficient system for delivering welfare—were excluded from a program for the distribution of U. S. food assistance, no one could reasonably object. And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitution." — Agency v. Alliance, DissentWell gosh, Scalia, you couldn't think of any U.S. organizations more emotion-provoking than running straight to what many Americans will think of as funding terrorism. It's also a particularly bad example for the additional reason that Hamas is "reputed to have an efficient system" for delivering welfare money to other branches of its organization. It would fail what we might as well call the "Rust test" before even qualifying for the topic at hand. Perhaps next time Scalia can pick a more thoughtful and fair example, like funding a child pornography ring or something.
But hey, I'm game. Let's suppose there were a foreign organization known for ranting about the United States, but also in a significantly better position to distribute funds to poor people in a certain region. Let's further accept the assertion that a central goal of foreign aid is to make people have warm thoughts about the United States. Unless the plan is to secretly supply this organization with funds, more good will would be gained in the giving than the withholding. It's hard to utterly demonize someone known to be feeding your starving children, even if they do bomb some of those children from time to time. It beats the bombing PR campaign alone, at any rate.
It gets worse:
"But here a central part of the Government’s HIV/AIDS strategy is the suppression of prostitution, by which HIV is transmitted. It is entirely reasonable to admit to participation in the program only those who believe in that goal."Here, Scalia is either confusing the concepts of means and ends, or he is offering a strong judgment about the effectiveness of a particular political means to achieve an end (a judicial no-no). In his world, an organization that works street-level with HIV and prostitutes can't suggest legalization as a way to reduce the spread of HIV, but a Supreme Court justice acting in his office can nevertheless leave the bounds of his authority to supply everyone with the proper policy opinion. Nice.
"Elimination of prostitution is an objective of the HIV/AIDS program, and any promotion of prostitution—whether made inside or outside the program—does harm the program."