The US Supreme Court [official website] ruled [opinion, PDF] 6-2 Thursday in Agency for International Development v. Alliance for Open Society International, Inc. [SCOTUSblog backgrounder] that the government cannot withhold funding from HIV/AIDS organizations that do not actively denounce prostitution. Under the US Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 [22 USC § 7601], Congress appropriated billions of dollars to fund efforts by nongovernmental organizations to assist in the fight against those diseases. The act provides, however, that no funds "may be used to promote or advocate the legalization or practice of prostitution or sex trafficking, and that no funds may be used by an organization "that does not have a policy explicitly opposing prostitution and sex trafficking." In an opinion by Chief Justice John Roberts, the court found that the second requirement violates the First Amendment [text]:
The Policy Requirement compels as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program. In so doing, it violates the First Amendment and cannot be sustained.Justice Elena Kagan took no part in consideration of the case.
Justice Antonin Scalia filed a dissenting opinion, joined by Justice Clarence Thomas. According to Scalia, "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." The court heard oral arguments in the case in April after granting certiorari [JURIST reports] in January.