We Can End AIDS March
Sex workers and advocates at We Can End AIDS March, July 2012, in Washington, DC. Photo by Melissa Gira Grant.

On the steps of the Supreme Court yesterday morning, shortly before arguments began on the constitutionality of compelling aid recipients to oppose prostitution, a dozen or so students in marigold hooded sweatshirts won the color-coordinated insignia game. Outside a photo op or two, the small group of activists with red umbrellas—which signal support for sex workers’ rights—left them folded at their feet. Sex workers, it appeared, would be as nearly invisible outside the Court as they would be in the arguments made within.

As expected, Deputy Solicitor General Sri Srinivasan, attorney for the United States Agency for International Development (USAID), who appealed the pledge case to the Supreme Court, was stuck defending an argument for which there’s no evidence other than the persistence of its supporters in claiming it to be true. That is, to oppose prostitution, Srinivasan argued, is central to the “reliable and effective” function of the United States’ fight against HIV.

That wasn’t quite the same case, though, that the plaintiffs—Alliance for an Open Society International (AOSI), joined by Pathfinder International and InterAction, representing AIDS projects around the world—brought. Though the pledge requirement jeopardizes their AIDS work, and their work with sex workers in particular, their challenge concerned the free speech issues involved. “A diverse mix of groups filed the briefs,” wrote Open Society Foundation’s senior policy analyst, Zoe Hudson, “because, no matter what their political persuasion and viewpoint, each believes that the First Amendment is sacred.” They prepared, and quite strategically given how politically untouchable the issue of prostitution has been in Washington, for this case not to serve as a venue by which to debate sex work. But there was no way to entirely sideline this question in the courtroom on Monday. It’s the argument the government wanted to have, and to an extent, one the Justices couldn’t put entirely aside, even if they lacked the evidence to fully weigh it.

The claim that opposing prostitution is “central” to the fight against AIDS is one entirely unsupported by data, including data from PEPFAR (the President’s Emergency Plan for AIDS Relief) itself. As the Institute of Medicine points out in their 2013 evaluation of PEPFAR, the only PEPFAR data available to them necessarily came from programs that comply with PEPFAR and adopt an anti-prostitution pledge, so it was not possible for them to compare those organizations who signed the pledge with the organizations that did not. PEPFAR’s own restrictions, for now, allow it to function evaluation-free.

This didn’t prevent some of the Justices from tangling with the government’s claim of “centrality.” If anything, the government’s reliance on centrality to defend the pledge weakened their position overall. “As far as I can tell from the briefs,” Justice Stephen Breyer remarked, “the people who work with the prostitutes to try to prevent AIDS uniformly tell us that if you go to those prostitutes and you try to get them to take steps to stop AIDS, it’s very hard to do if at the same time you’ve announced you’re against all prostitution.” This provided the Court with one of the few instances in which they could discuss what’s been reported by sex workers and those who provide health care to sex workers: that the pledge puts PEPFAR at cross-purposes with itself. “What they’re saying,” Breyer continued, “is that the condition imposed will interfere with the objective.”

Srinivasan, the attorney for the United States, attempted to counter this by citing an amicus brief filed by the Coalition Against Trafficking in Women (CATW) and Equality Now. It’s true that the brief restates the opinion that Congress has adopted—that “prostitution and sex trafficking” fuel the AIDS epidemic—but then it goes on to assert that the CATW and Equality Now are “opposed to the imposition of criminal penalties” against who they call “prostituted persons.” The government’s attorney did not mention that this view advocating against charging people with prostitution would very likely mean these two organizations who support the anti-prostitution pledge could not themselves abide by it.

The centrality issue hovered while two related questions took on even more abstract forms and the arguments wore on. (The first comment I heard when exiting the Court: “I wish we could have just interrupted arguments and said, ‘OK, all here in favor of prostitution? Let’s just end this here.’ ”) First: is it sound for USAID to guide recipients to separate into two organizations in an attempt to isolate PEPFAR funding bound by the pledge from private funds that might not? Second: should a government aid recipient be understood as acting as a “government spokesperson” who as a condition of funding must espouse, or can be compelled to espouse, the government’s viewpoint as its own?

Justice Breyer argued that operating as separate organizations is insufficient to remedy free speech concerns. He continued, “When A says ‘I believe in X’ and then they set up a separate structure—and every one knows they have set it up; I mean, that’s the point of it—and the structure says, ‘just kidding,’ nobody believes them from day one.” The claim, Breyer was pointing out, that organizations can continue to operate after adopting the pledge by splitting into separate organizations is itself at odds with the government’s centrality argument. Breyer was joined by Justice Ruth Bader Ginsburg in questioning the separability issue. “The DC district court said in its opinion, which was in your favor,” Ginsburg said to the government attorney, “ ‘Oh, all you have to do is spin off a subsidiary that gets the government money; it’s just a simple matter of corporate reorganization.’ But you know that getting an NGO, a new NGO, recognized in dozens of foreign countries is no simple thing to accomplish.”

On the spokesperson question, USAID and AOSI argued opposite points. Srinivasan described funding recipients as representatives of the US government, who cannot be sufficiently monitored and so must agree with the government’s policy because that will result in their “self-policing.” AOSI’s attorney David W. Bowker asserted repeatedly that as a result, the pledge forces a recipient into acting as a “government spokesperson” in public and in private, when that role cannot be bought with a grant agreement. “What is the limiting principle?” Bowker asked. “If all that’s required here is germaneness,” can the government then “give a dollar, and you own the viewpoint and you own the private speech? Where does that end?”

Here the government’s case got caught up in a term that pestered Justice Antonin Scalia: “partner.” When recipients get funding for aid work, said Srinivasan, they “partner” with the government. “It’s not just a naked grant of money,” he continued. “It is a naked grant of money to implement a particular program,” Scalia insisted. “And you call that ‘partnering with the Federal government’?”

“I do,” Srinivasan replied.

“Terrible verb,” said Scalia, for which he got his laugh.

As to the compelled speech limitation: this was argued by Bowker for AOSI, with Justices Sotomayor and Samuel Alito raising repeated concerns. “I’m not aware of any case,” said Justice Alito, “in which this Court has held that it is permissible for Congress to condition federal funding on the recipient’s expression of agreement with ideas with which the recipient disagrees. It seems to me like quite a dangerous proposition.” Is not the government attempting, as the government’s attorney put it for Alito, to “leverage funding to suppress a viewpoint”?

“Suppose you have an organization that previously has expressed support for the legalization of prostitution,” asked Alito. “When you tell them, well, if that’s your policy you can’t get our money, they say, well, we need your money, so we’re going to have to say uncle and now we are opposed to the legalization of prostitution. That then—that isn’t trying to change people’s viewpoint?”

Justice Sonia Sotomayor took up the question of what the principle behind the anti-prostitution pledge could look like were it applied to other issues. “Let me posit a hypothetical that I’m actually very troubled by,” Sotomayor said. “Let’s assume a city government is undertaking a campaign to prevent teen pregnancy and its associated problems, and it wants to promote the use of contraceptives,” as well as other programs, like parenting and daycare. What if, she asked, a church sought funding for a daycare project? “Can the city now say because we have this really important need to avoid sexually transmitted diseases, anyone who seeks our funds also have to say they believe in the use of contraceptives?” Alito offered a parallel example, on gun control. (Justice Scalia offered a third example to counter, asking why the government could be compelled to fund the Muslim Brotherhood over the Boy Scouts, that didn’t seem to go anywhere other than to bring up the apparently unquestionable rightness of the Boy Scouts.)

The limiting factor with all these hypotheticals, as well as the case at hand, is where both sides appeared to find agreement: the funding restriction had to be “germane” to the operation of the government’s program. If, as the government argued, eradicating prostitution was central to the government’s plan to end AIDS, in effect PEPFAR would be an anti-prostitution program, and so holding funding recipients to the anti-prostitution pledge would pass the “germane” standard. But as Justice Breyer pointed out, “Congress has two opposite views on this in front of it. One is the view that the way to fight AIDS is consistent with and is furthered by longer-term efforts to abolish trafficking in women—okay, prostitution. The other view is the better way to do it is to go into the active sex worker area and not express views on the merits of what they are doing.”

This would be the only time in the entire hour before the Court that the actual differing opinions would be clearly stated, and that the people being discussed in this case concerning the length and value of their lives would be so identified.

Perhaps the strongest case made against the “germane” standard, and with it an argument questioning the government’s insistence on the centrality of opposing prostitution, was raised by Justices Ginsburg and Sotomayor and just as arguments came to a close. Why, they both asked, if opposition to prostitution is so central to the government’s plan to protect the world from AIDS, did the government then exempt from the pledge requirement select programs (like the Global Fund to Fights AIDS, Tuberculosis, and Malaria) which together amount to 20 percent of PEPFAR’s spending?

“There seems to be a bit of selection on the part of the government in terms of who it wants to work with,” said Justice Sonia Sotomayor in the least subtle (but most necessary) burn of the day. “It would seem to me that if you really wanted to protect the US, you wouldn’t exempt anybody from this.”