George Soros, founder of the Alliance for Open Society, wants to help prostitutes and other sex workers. The thing he won't accept is a government gag order when it comes to free speech and conscience rights. And he shouldn't.
This is what is at stake in USAID v. Alliance for Open Society, which is slated for oral argument at the U.S. Supreme Court on April 22. The case is complicated, but concerned Christians and religious groups should take note of—and support—Soros' counterintuitive position, even if they disagree with his stance on prostitution. The ramifications for faith-based organizations whose views diverge from the current popular consensus are huge.
The messy case involves the Leadership Act of 2003, which provides funding for the President's Emergency Plan for AIDS Relief (PEPFAR), the federal government's massive, George W. Bush-initiated commitment to fight HIV/AIDS. The Act takes a comprehensive approach, seeking to reduce risky sexual behavior. Accordingly, Congress required organizations seeking funding for HIV prevention services overseas to have a policy "explicitly opposing prostitution and sex trafficking."
Organizations like Soros's Alliance for Open Society long have regarded the requirement to be counterproductive, making it more difficult for them to reach prostitutes, who are both particularly vulnerable and disproportionately likely to spread the disease. They argued that the government overreached by requiring them to affirm a particular commitment (rather than just be silent) and for that commitment to be required for the entire organization and not just for the program of services funded by the government.
"Requiring health workers to condemn the people they are trying to help will intensify the stigma and fears among this vulnerable population and make it harder to engage them effectively," Soros's group complained. (To continue receiving funds, the group signed the government's pledge while noting its objections.)
The federal government more recently has said that an organization that receives funds can be affiliated with entities that are not committed to the anti-prostitution pledge, but there is dispute over how tall this wall of separation must be between programs or entities. Some courts have ruled in favor of the organizations that have protested the gag rule, and other courts have ruled in favor of the government's requirement. That's no doubt one reason the Supreme Court agreed to take the case. Yet the court itself has not been consistent on how far the government can go in seeking to control the speech of organizations it funds.
Some critics of the congressional requirement have blasted it for being moralistic; a Huffington Post column criticized it as wrongly denying that "sex work" is "a real form of work."
By contrast, several faith-based organizations believe that Congress's restriction in this case is defensible—but they worry what it will happen if the policy here is upheld by the Supreme Court. An amicus brief by the American Center for Law and Justice argues that the requirement of alignment with the government's views is justified here but stresses "the limited nature of the government power to attach conditions to funding."
It does make sense for the government to seek out partners whose views on the problems and services at stake are the same as its own. But in our increasingly diverse society, many groups that offer effective services—not least those rooted in historic Christian beliefs—will hold convictions at odds with those of government and the current cultural consensus. It is one thing for funding rules to require an alignment of purposes and effects in the services the government desires to support. But a government policy that can require private groups to commit to its ideological orthodoxy asks too much and will increasingly marginalize faith-based services.
It is not difficult to imagine a government program to combat bullying that refuses to partner with certain youth-serving organizations because the groups advocate biblical sexual ethics that are construed as homophobic. It's possible to envision a case where local officials charged with regulating hospitals would deny an operating permit to a Catholic hospital because of its pro-life commitments, even though there are abortion clinics nearby, reasoning that the hospital's cramped practices contradict the government's message that abortions are not only legal but perfectly acceptable. It's likely that we'll see officials objecting to funds for a faith-based service group because, although the group accepts the restriction not to use government funds to pay for worship and Bibles, its very idea that faith in God is essential goes against the government's neutrality.
In its petition to the Supreme Court to take up this case, the Obama administration stressed an argument that the courts have also sometimes used: It's not unconstitutional to require agreement, since the group's aren't forced to seek funding. If a group disagrees with the policy, the Obama administration argues, it can simply try to help prostitutes without using government money.
But that's still dangerous. As the government funds or tightly regulates more services, the ability of faith-based organizations to continue to serve the public without submitting to alien restrictions will diminish. The government should be cutting the strings it attaches to its funds, not the organizations eligible to help those in need.
Stanley Carlson-Thies is president of the Institutional Religious Freedom Alliance.