Tag: news

The U.S. Supreme Court may soon overturn a rule requiring groups that receive government grants for anti-HIV/AIDS work to publicly pledge opposition to prostitution.

Beginning in 2003, Congress said domestic and foreign nonprofits that get federal assistance to help “prevent, treat, or monitor HIV/AIDS” must have “a policy explicitly opposing prostitution and sex trafficking.” The rule was passed as part of the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, which also stipulated that these groups would be ineligible for any new grants or programs created by the law if they “promote or advocate the legalization of prostitution or sex trafficking.”

Nobody is advocating in favor of making sex trafficking—that is, commercial sex that’s coerced or forced—legal. But prostitution between consenting adults is another matter. And from a public health perspective, criminalizing the latter makes no sense. Keeping consensual prostitution illegal only makes sex work more dangerous for everyone involved and makes practicing safe sex (and fighting sexually transmitted infections like HIV) more difficult.

Back in 2013, the Supreme Court said the pledge requirement was unconstitutional when applied to U.S. nonprofits because it violated these corporations’ First Amendment rights.

But what about foreign affiliates of U.S.-based groups—is the anti-prostitution pledge clause applied to them still a First Amendment violation? That’s what justices are now considering. On May 5, the Court heard oral arguments in United States Agency for International Development v. Alliance for Open Society International, Inc.

“After a little over an hour of argument by telephone, it seemed that the answer [to the First Amendment question] will probably still be yes,” writes Amy Howe at SCOTUSblog. But “the vote may be closer than it was seven years ago.”

Last time around, justices ruled 6-2 that making these groups take an anti-prostitution pledge as a condition of grant funding was unconstitutional (with Justices Clarence Thomas and Antonin Scalia dissenting). Justice Elena Kagan recused herself last time and will do so for the new case, too.

Arguing on behalf of the Alliance for Open Society International in Tuesday’s teleconference session, David Bowker told the Court that U.S. groups suffer reputational damage when foreign affiliates sharing their names and missions appear to support prostitution criminalization. Yet partnerships with these foreign affiliates are often a necessary condition of carrying out work abroad, Bowker said.

Chief Justice John Roberts agreed that “it’s undisputed that to be effective in many of the foreign countries involved here, you have to operate through a foreign entity.”

Howe has more details:

What kind of ties, Chief Justice John Roberts asked, would the government require to attribute the speech of the foreign entity to the domestic one? [Assistant to the U.S. Solicitor General Christopher] Michel responded that when two groups have opted to be separate legal entities, they will have separate legal rights. They have to take “the bitter with the sweet.”

Roberts did not seem entirely convinced. He pushed back, asking whether it is reasonable for the government to insist “on formal legal ties in this context,” particularly if an NGO needs to operate through a foreign entity to be effective overseas. Especially when the domestic and foreign NGOS have “the same logo, the same brand,” Roberts wondered “if it makes sense to think of foreign entity as another channel for domestic entity’s speech.”

Roberts pressed this point again later with Bowker, asking him whether the U.S.-based NGOs can control what their foreign affiliates say on the question of prostitution and sex trafficking.

Bowker responded that, “as a practical matter,” the U.S.-based NGOs can indeed “veto” speech by their foreign affiliates on these issues.

Justice Neil Gorsuch also seemed somewhat unconvinced by the government’s argument. It seems “to rely on legal separation,” said Gorsuch. “But why does the First Amendment care?”

Past Supreme Court cases “seem to suggest” justices “are less concerned with corporate formalities” regarding business structure and more with public perception, suggested Justice Sonia Sotormayor.

Meanwhile, Justice Ruth Bader Ginsburg expressed skepticism that the imposition on anti-HIV/AIDS groups made sense when there was not a similar requirement for other public health groups, like the World Health Organization (which is in favor of decriminalizing prostitution) and Justice Stephen Breyer suggested the same arguments against the pledge that applied in 2013 were valid in this case as well.

Justice Thomas, who dissented from the majority last time, “did not necessarily seem to see much difference between today’s case and that one” either, according to Howe.

And Justices Brett Kavanaugh and Samuel Alito expressed concern that striking down the anti-prostitution pledge would have ripple effects on other government rules. Kavanaugh’s specific hypothetical: “Suppose the U.S. government wants to fund foreign NGOs that support peace in the Middle East but only if the NGOs explicitly recognize Israel as a legitimate state. Are you saying the U.S. can’t impose that kind of speech restriction on foreign NGOs that are affiliated with U.S. organizations?”

Federal lawyer Michel encouraged a broad interpretation, suggesting that ruling in favor of the nonprofits here could somehow invalidate rules against foreign donations to election campaigns. But the anti-prostitution pledge, in this case, is “unique,” responded plaintiffs’ lawyer Bowker. Ruling it a First Amendment violation would be a “very narrow” decision, he told justices.

The Court is expected to issue a decision this summer. You can listen to Tuesday’s oral arguments here.

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From Reuters (Nate Raymond), reports that U.S. District Judge Douglas Woodlock has held that the closing of gun stores (part of a broader closing of many businesses) was an “improper burden” on Second Amendment rights:

The judge said he would direct the state to allow firearm retailers to re-open by noon on Saturday under a series of restrictions meant to promote cleanliness and social distancing. A lawyer for the state indicated it may appeal.

The story is based on Judge Woodlock’s oral statement from the bench, but I expect there to be a written order shortly; I hope to blog about it then. Thanks to commenter Dr. Ed for the pointer.

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The First Amendment protects “the free exercise” of religion and “the right of the people peaceably to assemble.” According to a federal judge in California, those constitutional rights do not trump the power of state and local officials to prohibit in-person religious services in the name of combating COVID-19.

On March 4, California Gov. Gavin Newsom (D) issued a statewide “stay at home” order as part of his administration’s efforts to arrest the spread of the coronavirus. Local officials in San Joaquin County soon followed suit with an order of their own, which banned “all non-essential gatherings of any number of individuals.” Both orders effectively prohibited churches from holding in-person religious services.

The San Joaquin-based Cross Culture Christian Center took the matter to the U.S. District Court for the Eastern District of California, asking Judge John Mendez to declare the orders unconstitutional as applied to its religious practices and to enjoin the government from enforcing them. According to the lawyers for the church and its pastor, Jonathan Duncan, if allowed to reopen, they planned to “follow CDC guidelines and San Joaquin County social distancing protocols in the use of their sanctuary for assemblies and their parking lot for drive-in services.”

Judge Mendez ruled against the church this week. “The incidental—albeit uncomfortable—burden the State and County orders place on the exercise of religion simply do not engender the type of religious discrimination the Constitution aims to prevent,” Mendez wrote in Cross Culture Christian Center v. Newsom. “The State and County orders are not unconstitutional. Rather they are permissible exercises of emergency police powers especially given the extraordinary public health emergency facing the State.”

In Mendez’s view, the courts should be extremely wary about second-guessing the wisdom of these sorts of public health orders. In fact, he maintained, the government should get to enjoy broad leeway to operate against the coronavirus. “During public health crises,” Mendez maintained, “government officials must ask whether even fundamental rights must give way to a deeper need to control the spread of infectious disease and protect the lives of society’s most vulnerable. Under these rare conditions, the judiciary must afford more deference to officials’ informed efforts to advance public health—even when those measures encroach on otherwise protected conduct.”

A different vision of the judicial role in the age of coronavirus was offered last month by Judge Justin Walker of the U.S. District Court for the Western District of Kentucky. In On Fire Christian Center v. Fischer, Walker enjoined Louisville Mayor Greg Fischer (D) from enforcing a ban on drive-in Easter services. Yes, the city may take various actions in order to stop the spread of infectious diseases, Walker acknowledged. But “it appears likely that Louisville’s interest in preventing churchgoers from spreading COVID-19 would be achieved by allowing churchgoers to congregate in their cars as On Fire proposes.” In other words, according to Walker, this particular prohibition amounted to an unjustifiable exercise of government power.

Walker also differed from Mendez and his call for judges to show “more deference” to government officials battling the disease. “The COVID-19 pandemic has upended every aspect of our lives,” Walker wrote. Nevertheless, “constitutional rights still exist.”

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