WASHINGTON (CN) - AIDS charities need not take an "anti-prostitution pledge" if they want federal funding, the U.S. Supreme Court ruled Thursday, affirming an injunction.
Passed by Congress in 2003, the Leadership Act supported an international campaign to fight AIDS, tuberculosis, and malaria pandemics through the development of vaccines and treatments and partnerships between federal agencies and nongovernmental organizations.
A controversial subclause of the legislation states: "No funds made available to carry out this Act ... may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking."
In 2005, the nonprofit groups Alliance for an Open Society International and Pathfinder International sued the agencies implementing the funding.
Organizations of this ilk have long argued that such a pledge costs them international credibility, compromises their institutional integrity, interferes with prevention outreach to sex workers and violates the organizations' free speech rights.
The United States Agency for International Development (US-AID) and U.S. Department of Health and Human Services issued less restrictive guidelines after a federal judge blocked the pledge with a preliminary injunction, but the court found that an injunction was still appropriate.
A divided three-judge panel of the 2nd Circuit affirmed in July 2011.
The issue also divided the Supreme Court, which ruled 6-2 for the nonprofits Thursday.
"As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds," Chief Justice John Roberts wrote for the majority. "This remains true when the objection is that a condition may affect the recipient's exercise of its First Amendment rights.
"At the same time, however, we have held that the 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,"' Roberts added. "In some cases, a funding condition can result in an unconstitutional burden on First Amendment rights."
Roberts emphasized that the case "is about compelling a grant recipient to adopt a particular belief as a condition of funding."
"By demanding that funding recipients adopt - as their own - the government's view on an issue of public concern, the condition by its very nature affects 'protected conduct outside the scope of the federally funded program,'" he continued. "A recipient cannot avow the belief dictated by the policy requirement when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime. By requiring recipients to profess a specific belief, the policy requirement goes beyond defining the limits of the federally funded program to defining the recipient."
The government's amended guidelines additionally do not save the program, according to the ruling.
"Under those guidelines, funding recipients are permitted to work with affiliated organizations that do not abide by the condition, as long as the recipients retain 'objective integrity and independence' from the unfettered affiliates," Roberts noted.
But the government's alternatives are still insufficient, according to the ruling.
