Some legal advocates who focus on religious liberty issues had filed briefs opposing the "prostitution pledge" provision. They reasoned that its allowance would let the government unconstitutionally dictate the ideological views of any organization that receives government funding. These groups understandably feared strengthening the Obama administration's attacks on religious liberty, buttressing local governments' attacks on pregnancy centers through speech requirements, and squeezing out campus student groups that decline to conform to university dogma on social issues. The groups reasoned that even the tax exemption status of charitable groups, seen (oddly) as a form of government subsidy, could be jeopardized if groups opposed the social policies of the government.
Other religious liberty advocates, such as the American Center for Law and Justice, reasoned--rightly, in my view--that requiring grantees to supply proof of opposition to prostitution was an eminently reasonable requirement to further the goals of a government health program that hinges on stopping prostitution. The anti-prostitution requirement, in this view, does not restrict the free speech of anyone--it just keeps the government from paying for speech opposed to the goals of this particular program, which provides funding on a completely voluntary basis. Justices Scalia and Thomas agreed in their dissent:
In a comment relevant to the funneling of government funds to groups that support prostitution, abortion and other evils, the dissenting Justices noted,
But here a central part of the Government’s HIV/AIDS strategy is the suppression of prostitution, by which HIV is transmitted. It is entirely reasonable to admit to participation in the program only those who believe in that goal.
Whatever one might conclude regarding the theoretical impact of this case on religious liberty, what remains undeniable and real are the immediate harms, from a pro-life, anti-trafficking and anti-AIDS perspective, that result from this ruling:Money is fungible. The economic reality is that when NGOs can conduct their AIDS work on the Government’s dime, they can expend greater resources on policies that undercut the Leadership Act.
- more money to groups that see prostitution as legitimate "sex work" rather than as an evil to be eradicated--including pro-abortion and pornography (see CATW footnote below) groups;
- a blow to efforts to eradicate prostitution, along with prostitution's threat to public health and its degradation of and violence against women and children;
- the prospect of yet more forced and elective abortions, resulting from relying on condom distribution programs and unionization of prostituted women and children rather than rescuing them out of sex trafficking and other forms of prostitution.
Following are a few examples that illustrate the real-world implications of striking down the anti-prostitution requirement: