SUPREME COURT NOTEBOOK

Justices strike down anti-prostitution pledge

By Mark Sherman

Associated Press

WASHINGTON (AP) -- In a free-speech ruling, the Supreme Court said last Thursday that the government cannot force private health organizations to denounce prostitution as a condition of getting taxpayer money to fight AIDS around the world.

Chief Justice John Roberts, writing for the court, said the anti-prostitution pledge in a 2003 AIDS funding law improperly restricts the groups' U.S. constitutional rights.

Four organizations that work in Africa, Asia and South America challenged the provision in the law, arguing their work has nothing to do with prostitution.

The Obama administration had countered that it is reasonable for the government to give money only to groups that oppose prostitution and sex trafficking because those activities contribute to the spread of HIV and AIDS. It said that if groups were not required to oppose prostitution and sex trafficking, they could spend private funds in a way that might undermine the government's mission.

In the 6-2 decision, Roberts wrote that requiring the pledge "goes beyond preventing recipients from using private funds in a way that would undermine the federal government."

"It requires them to pledge allegiance to the government's policy of eradicating prostitution," he wrote. That, the government cannot do, he wrote.

Justices Antonin Scalia and Clarence Thomas dissented. Scalia said the pledge "is nothing more than a means of selecting suitable agents to implement the government's chosen strategy to eradicate HIV/AIDS."

"That is perfectly permissible under the Constitution," Scalia wrote.

In last Thursday's opinion, Roberts noted that Congress has made available billions of dollars for private groups to combat the spread of HIV and AIDS through the law, formally known as the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003.

Another condition of funding that was not at issue in this case prohibits those groups from doing anything to promote the legalization of prostitution or sex trafficking.

A federal appeals court in New York had struck down the anti-prostitution pledge as an unacceptable intrusion on the groups' right to speak freely. Another appeals court, in Washington, D.C., had upheld the provision against a similar challenge.

Two groups -- Alliance for Open Society International Inc., which runs a program in Central Asia to prevent the spread of HIV and AIDS by reducing drug use, and Pathfinder International, which provides family planning and reproductive health services in more than 20 countries -- went to the courts after they adopted policy statements opposing prostitution in order to keep their eligibility for funding intact.

The other two groups are Global Health Council and Interaction.

The organizations "fear that adopting a policy explicitly opposing prostitution may alienate certain host governments, and may diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes in the fight against HIV/AIDS," Roberts said.

Marine Buissonniere, director of Open Society's public health program, said other organizations refused American money rather than sign the pledge.

"The recipients of federal AIDS funding can now operate without having to embrace the ideological views of the U.S. government and without having to condemn prostitution," Buissonniere said. She said there is ample evidence of the effectiveness of working with prostitutes to fight against AIDS.

The groups also pointed out that the World Health Organization and other international organizations receive U.S funds to fight AIDS and do not have to comply with the anti-prostitution pledge. Indeed, some of the international agencies support lesser penalties for prostitution as part of their AIDS-fighting strategy.

Justice Elena Kagan did not take part in the case, presumably because she worked on it while serving in the Justice Department as the Obama administration's top Supreme Court lawyer.

Court rules for Amex in dispute with merchants

WASHINGTON (AP) -- The Supreme Court ruled against merchants last Thursday who object to having to accept American Express debit and credit cards along with the company's iconic charge card.

The justices said in a 5-3 decision that the merchants could not band together, but rather must use arbitration to resolve their claims against American Express one by one.

The decision fell along ideological lines, common in cases involving arbitration, with Justice Antonin Scalia writing for the conservative-leaning majority.

Scalia said the merchants should be held to their agreements with American Express, which contained a waiver of class action, preventing multiple parties from joining together to press a common claim. He said it didn't matter if "it is not worth the expense involved" to the merchants to proceed individually.

The case involved the merchants' effort to sue American Express in court and the company's move to force the businesses to use arbitration individually.

A party that is being sued often prefers arbitration, where a third party settles the dispute, to a more time-consuming and costly lawsuit. Defendants in civil cases also typically resist class actions, which increase the pressure to settle because of the cost of defending them and the potential for very large judgments.

Justice Elena Kagan filed a dissent that was joined by Justices Ruth Bader Ginsburg and Stephen Breyer. The contracts between American Express and the merchants effectively deprive the merchants of any legal recourse, Kagan said.

"And here is the nutshell version of today's opinion, admirably flaunted rather than camouflaged: Too darn bad," she said.

Justice Sonia Sotomayor took no part in the case.

The case is American Express v. Italian Colors Restaurant, 12-133.

Man shouldn't have

gotten harsher penalty

WASHINGTON (AP) -- The Supreme Court says a man should not have gotten a harsher penalty for a crime because a judge had investigated his previous offenses.

The 8-1 decision came last Thursday in the case of Matthew Descamps, a Washington state man convicted of possessing a firearm in 2005. He could have been sentenced to a decade in prison. But since he had been convicted of multiple crimes, he fell under the Armed Career Criminal Act. That requires a sentence of at least fifteen years if the defendant has three prior convictions for violent felonies.

Descamps argued that his 1978 conviction for burglary wasn't violent and didn't count. The federal judge decided to investigate the record himself and decided that it did count. Deschamps appealed, and the Supreme Court reversed the decision.

Published: Mon, Jun 24, 2013