The Supreme Court of the United States heard oral arguments last month in a case that raises a very important issue for the many tax-exempt nonprofit organizations that receive government funding in one form or another: when, if ever, can a government require that the recipient of government funding for a particular program adopt an explicit policy that would apply to all of the organization’s activities whether government-funded or not? In Agency for International Development v. Alliance for Open Society International, Inc., the specific issue is “Whether the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. § 7631(f), which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment.” The Second Circuit Court of Appeals panel that heard the case split 2-1, with the majority concluding that the requirement did violate the First Amendment. The case involves application of the much criticized “unconstitutional conditions” document, and the questioning at oral argument did not provide a clear indication of how the Court will resolve the case, according to veteran Supreme Court observer Lyle Denniston’s analysis. The case is further complicated by the fact that Justice Kagen has recused herself, so there is the possibility of a 4-4 tie vote that has the effect of upholding the lower court decision but without clear guidance on this issue. A decision is expected by the end of June.
LHM
