The First Amendment trumps a Bush-era law forcing relief groups to condemn prostitution.
It hasn’t drawn as much attention as targeted killing, warrantless wiretapping, the ill treatment of Guantanamo prisoners, or White House meddling with the drug approval process. But the Obama administration’s dogged defense of the so-called “anti-prostitution pledge” has puzzled progressives as much as any policy in this president’s Bush-like second term.
The pledge law, adopted in 2003 to appease religious conservatives, bars U.S. support for any international health group that fails to speak out against prostitution—even if its clients are sex workers. Organizations as varied as UNAIDS, the World Bank and the World Health Organization have condemned the rule for undermining the fight against HIV/AIDS, but Obama’s Justice Department hasn’t budged.
Now, thanks to a new Supreme Court decision, the pledge will finally be scrubbed from the books. In a Thursday morning decision, the court declared that the anti-prostitution pledge violates the constitution’s First Amendment. As Chief Justice John Roberts helpfully pointed out, that’s the one that “prohibits the government from telling people what they must say.”
For all the misery it has caused over the past three decades, AIDS has taught us volumes about the social forces that fuel plagues. Some of the most important insights have come from impoverished communities where women sell sex to survive. No one denies that the work is demeaning and dangerous. But sanctions and stigma make it far more harmful. And as numerous studies have shown, efforts to educate and empower sex workers can make them and their clients less vulnerable.
As established by Congress in 2003, the U.S. global AIDS program can’t support “any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” Congress also strictly forbade any partner organization “to promote or advocate the legalization or practice of prostitution”—a phrase vague enough to cover almost any community mobilization effort.
Health advocates sued repeatedly to block the provision, claiming that it not only undercut their work but violated their right to free speech. A U.S. district court granted them an injunction in 2006, freeing U.S. organizations from the stricture, and a federal appeals court affirmed the decision in 2011. Yet the Obama administration continued to fight the current, alienating its usual public-health allies.
In their Supreme Court brief, the Justice Department’s lawyers conflated prostitution and sex trafficking as “activities that help to spread the disease.” The forced pledge was, they argued, just a way to ensure that the government’s partners shared a commitment to “eradicating” such practices rather than “promoting” them—as if those were the only alternatives. “If the government were to fund a campaign urging children to ‘Just Say No’ to drugs,” they wrote, “we do not doubt that it could require grantees to state that they oppose drug use by children.”
But the appeals court had already rejected the analogy. Its 2011 ruling freed U.S. organizations to engage sex workers rather than condemn them, but the prostitution pledge continued to paralyze community-based organizations in other parts of the world. Writing in the Journal of the International AIDS Society, researchers recently described how the vague U.S. mandate had effectively shut down drop-in centers, stalled campaigns to prevent violence against sex workers, and crippled programs that train them to educate their peers about safer sex. The threat of sanctions has also silenced small grantees from reporting successes that could help other groups strengthen their own programs.
Justices Anton Scalia and Clarence Thomas sided with Obama, repeating the administration’s claim that the forced pledge was “nothing more than a means of selecting suitable agents to implement the government’s chosen strategy to eradicate HIV/AIDS.” But the majority went with Roberts, who noted that the mandatory pledge forced private organizations to “pledge allegiance to the Government’s policy of eradicating prostitution.”
“As to that,” Roberts writes, “we cannot improve upon what Justice Jackson wrote for the Court 70 years ago: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”