MANHATTAN (CN) – The 2nd Circuit Court of Appeals declared it unconstitutional for Congress to condition funding for AIDS charities on participants taking an “anti-prostitution pledge.”
Nonprofit groups opposing the mandate 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.
In a statement, Pathfinder International President Daniel E. Pellegrom celebrated the judicial “victory.”
“Any organization that works to address the tragedy of HIV and AIDS must confront head on the need to serve sex workers, but the loyalty oath undermines our efforts by forcing us to stigmatize the very people we are trying to reach,” Pellegrom wrote.
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 NGOs.
A controversial subclause of the legislation stated, “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 first sued the agencies implementing the funding in Manhattan federal court, where a district judge granted a preliminary injunction blocking the pledge.
The United States Agency for International Development (US-AID) and U.S. Department of Health and Human Services appealed that injunction, on the grounds that they were drawing up less restrictive guidelines. The circuit remanded the case back to the district court to determine whether the injunction was still needed.
Back in district court, Global Health Council and InterAction joined the original lawsuit, and the original injunction was upheld in 2008. The government appealed again that year.
On Wednesday, the majority of a three-judge panel upheld that injunction.
“Compelling speech as a condition of receiving a government benefit cannot be squared with the First Amendment,” U.S. Circuit Judge Barrington D. Parker wrote, for the majority. “Here, … silence, or neutrality, is not an option for Plaintiffs. In order to avoid losing Leadership Act funding, they must declare their opposition to prostitution.”
In his dissent, Circuit Judge Chester Straub wrote the program conceived by stridently opposed to prostitution.
“Congress did not determine in the Leadership Act that it wished to fight HIV/AIDS through a strategy of remaining neutral on the issue of prostitution,” Straub wrote. “Rather, it specifically wanted to ‘eradicate’ prostitution and other behavioral risks.”
The majority noted that prominent international health groups found this position to be self-defeating. The World Health Organization and Joint United Nations Programme on HIV/AIDS argue that reducing penalties for prostitution ranks “among the best practices for HIV/AIDS prevention,” Parker pointed out in the majority opinion.
Straub wrote in his dissent that the D.C. Circuit Court of Appeals favored the government’s point of view in an “almost identical” challenge to the Leadership Act in 2007.
He ended his opinion by urging the Supreme Court to “set us straight.”
But Pellegrom, the Pathfinder president, is urging the government to ease its anti-prostitution posture.
“We believe the court decision should stand, and the US government should take steps to immediately repeal this harmful policy,” Pellegrom said.