The Supreme Court has yet to render decisions on gay marriage, affirmative action or the Voting Rights Act. But a number of critical decisions have come down, some good, some bad. I’ve been sitting on post on criminal rights for a few days; I’ll hopefully crank it out over the weekend. But I did want to comment on Agency for International Development v. Alliance for Open Society International, Inc., which was handed down yesterday.
(Aside: I have become a total SCOTUSblog junkie. They have pages on every case the Court is handling, complete with amicus briefs. When they liveblog decisions, I close my office door. They get it fast and they get it right. They absolutely deserved the Peabody Award they won for getting the Obamacare decision right while the networks floundered. If you care about the Court, they are a must-bookmark.)
About ten years ago, the government implemented two policies for funding organizations to fight AIDS. The first was that they not used funds to promote prostitution or its legalization. The second was that they must explicitly oppose prostitution. The orgs argued that the second requirement impugned their First Amendment rights by forcing them to advocate a political view. And yesterday the Court agreed 6-2 that it did.
(It was always stupid policy — legalizing prostitution would very likely cut into the spread of AIDS. But the Court has no power to overturn laws because they’re dumb.)
This case is about far more than prostitution and HIV/AIDS. The expansion of the modern regulatory state has increasingly led to financial involvement of the government with private organizations — including churches, religious universities, and religious charities — in ways that potentially give the government power over those organizations. Tax exemptions, which have been treated by this Court as tantamount to the provision of funds, are a prominent example. Student loans and grants, which are likewise treated as equivalent to direct payments to the university, are another. Numerous other examples exist, including the direct grants at issue here.
Under the government’s theory in this case, federal, state, and local governments may use these kinds of government funding programs as leverage to pressure organizations into affirmatively expressing particular government-prescribed views as the organizations’ own. For instance, if a government wants to pressure such groups to avow that they support or oppose contraception, pacifism, abortion, the death penalty, assisted suicide, or whatever other policy those then in control of the government choose, then that government would be free to do so.
For the reasons discussed below, that cannot be right. Such a “get with the program” power would let the government badly distort the marketplace of ideas by strengthening groups that toe the government line and financially crippling groups that refuse to say what the government demands. And such a power to coerce ideological conformity would unacceptably burden religious groups’ rights to speak or not speak in accordance with the truth as they see it.
Exactly. As Noah Feldman pointed out, this decision protects conservative views as much or more than it protects liberal ones. Had the Court upheld this provision, there would have been nothing to stop the government from forcing organizations that wanted federal funds or tax exemptions to recognize the legitimacy of gay marriage or the importance of a woman’s right to choose or anything else that popped into their heads. To quote from Robert’s stirring decision:
[T]he Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. As to that, 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 or force citizens to confess by word or act their faith therein.” West Va. Bd. of Ed. v. Barnette.
Now there’s an argument for this policy, which Scalia and Thomas put forward and is discussed more by Ken at Popehat that goes like this: it’s the government’s money, so you have to play by their rules. There Ain’t No Such Thing as a Free Lunch. You don’t want to parrot the government line? Don’t take their money.
I would say, as a general rule, that’s not unreasonable. But the history of government using its financial power to compel behavior is long and ugly and has frequently extended to areas where we don’t have a choice (or effectively don’t) about taking their money. Highway funding was used as a bludgeon to raise the drinking age. Financial aid was used to force universities to adopt more aggressive anti-drug and anti-drinking policies. In fact, this very Court has decided that we are not entitled to Social Security money. How long would it take for politicians to mandate certain views in return for benefits?
Amanda Marcotte, always one to completely miss the point, tries to hammer this into a Bush and the evil Christians narrative. But that ignores that the Obama Administration supported this policy. Numerous “feminists” supported the policy or filed amicus briefs in favor. Numerous Democratic politicians supported it and filed amicus briefs in favor. And it would not surprise me at all to see this emerge again with a thin Constitutional veneer.
As Volokh says, our government has tremendous financial and regulatory power. Even if we elected Rand Paul and a bunch of libertarians tomorrow, it would take decades for that power to recede. We have to be very suspicious when it tries to use that power to make people agree with it. To not do so is to ignore the monster in the room.