In a decision that was all but overshadowed by anticipation over decisions on gay marriage and voter rights, the U.S. Supreme Court yesterday ruled 6-2 in favor of the First Amendment. This case was Agency for International Development v. Alliance for Open Society International. The dispute was over a 2003 law with the rather clunky name “United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003.” The law provides billions of dollars for non-governmental agencies to fund efforts to combat HIV/AIDS worldwide. However, the law required funding recipients to agree explicitly in their awarding documents that they oppose prostitution. That provision was added by Republican Representative Chris Smith, reportedly as a sop to conservative ideology that had no practical effect on the prevention of HIV/AIDS. The law also requires the U.S. President, as part of the overall prevention strategy, to “promote abstinence” and “encourage monogamy and faithfulness.”
Chief Justice John Roberts, a Republican appointee, wrote the Court’s opinion, and was joined by fellow Republican Justices Kennedy and Alito, as well as three of the Court’s four Democratic Justices (the fourth, Justice Elena Kagan, recused herself from the case, presumably because she worked on this issue while serving in the Department of Justice). In his ruling, Roberts noted that, if the U.S. government directly compelled the organizations to speak a particular message, that would clearly violate the First Amendment. Here, the Court ruled that the organizations had the same First Amendment rights even where the government’s compelled speech orders came indirectly, i.e., were a condition on receiving federal funding. According to Roberts’ decision, “This case is … about compelling a grant recipient to adopt a particular belief as a condition of funding.” (emphasis added)
Two Republican Justices — Antonin Scalia and Clarence Thomas — dissented from the Court’s ruling, arguing that “the government may enlist the assistance of those who believe in its ideas to carry them to fruition.” Of course, that reasoning is total b.s., as the groups receiving funding didn’t necessarily believe in the government’s anti-prostitution language and simply sign on voluntarily as a partner; rather, the groups were essentially blackmailed into adopting the government’s conservative ideological message in order to receive funding.
While this Supreme Court decision may be forgotten by next week, as the Court is expected to unveil its controversial gay marriage and Voter Rights Act rulings, it is an important decision that gives us a peek at several things, including (1) the legislative process, where Republicans will go so far as to violate the Constitution to slam us with unrelated conservative ideology; and (2) the importance of the First Amendment, even to some conservatives, who hopefully recognize that forcing people to espouse a particular government belief or message is something they may do in North Korea, but they shouldn’t try it in America.
