Why did John Roberts rule for sex workers?

Hint: His seemingly progressive digression belies a long game that could thwart major liberal goals

Topics: John Roberts, Supreme Court, Sex Work, sex worker rights, Prostitution, Antonin Scalia, Samuel Alito, First Amendment, HIV, Clarence Thomas,

Why did John Roberts rule for sex workers?Chief Justice John Roberts (Credit: AP/Pablo Martinez Monsivais)

What would it take for Chief Justice John Roberts and Justice Samuel Alito to side with the court’s liberal justices and a coalition of left-leaning groups — including advocates for sex workers — as they did in a decision released today? Answer: if it’s about resisting the federal government attaching ideological conditions to its funds.

Agency for International Development v. Alliance for Open Society International, Inc., the so-called anti-prostitution pledge case, is a victory for groups who said that the restrictions prevented them from effectively reducing the spread of HIV by policing how they interacted with sex workers overseas. The decision was hailed by human rights groups from the ACLU to the Center for Health and Gender Equity. But the two conservative justices seem to have a long game in mind that could conflict with major progressive goals.

The case was brought in 2005 to challenge a Bush administration-era act of Congress that said that no funds “may be used to promote or advocate the legalization or practice of prostitution,” and that a group “that does not have a policy explicitly opposing prostitution” is ineligible for funding. The claim was that opposing prostitution was integral to eliminating the spread of HIV. “As a direct regulation,” wrote Roberts, “the Policy Requirement would plainly violate the First Amendment,” which was one of the key arguments made by the opponents of the law, who included NGOs based in the United States. “The question is whether the Government may nonetheless impose that requirement as a condition of federal funding.”

Although the court had held in 1991’s Rust v. Sullivan that the federal government could attach conditions on Title X family planning funding — specifically, whether abortion could be discussed — Roberts claimed this case was different, because the distinction is regulations “that specify the activities Congress wants to subsidize — and conditions that seek to leverage funding to regulate speech outside the contours of the federal program itself.” In other words, Planned Parenthood can separate its Title X funding from its activities related to abortion, so its free speech rights aren’t infringed upon by the Title X restrictions. “As a general matter,” Roberts went on, “if a party objects to those limits, its recourse is to decline the funds. In some cases, however, a funding condition can result in an unconstitutional burden on First Amendment rights.”

Why was this policy requirement different? Partly because it requires an affirmative statement from the organizations that they oppose prostitution: “By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient.” He concluded, “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.”

Scalia, joined by Thomas, found that ridiculous; he argued that the government has every right to pick and choose its grantees according to their belief. “If the organization Hamas — reputed to have an efficient system for delivering welfare — were excluded from a program for the distribution of U. S. food assistance, no one could reasonably object,” Scalia wrote. “And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitution.” (It helped that he accepted the argument that working with sex workers without trying to reject sex work would undermine HIV prevention: “Elimination of prostitution is an objective of the HIV/AIDS program, and any promotion of prostitution — whether made inside or outside the program — does harm the program.”

So what’s going on? Issues around prostitution and sex trafficking have long divided traditional allies and created strange bedfellows. In this case, feminist-identified groups like Equality Now and the Coalition Against Trafficking in Women supported the pledge, which was promoted by the Bush administration and conservative politicians like Rep. Chris Smith, while public health professionals advocating harm reduction and non-judgmental approaches to sex work opposed it. But this case had even more wild cards. One of the other amici was Heartbeat International, an organization of antiabortion crisis pregnancy centers, which says it has been subject to attempts at compelling speech, “including laws that compel the centers to provide disclaimers stating their positions on abortions and emergency contraceptives — forcing the centers to raise these sensitive issues according to the government’s timing and judgement rather than their own.” They’re referring to regulations intended to prevent the centers from tricking women into thinking they’re visiting an abortion clinic, only to be given misleading information to try to talk them out of it.

That’s why Harvard Law School professor Noah Feldman, writing at Bloomberg, sounded an alarm: “The politics of federal funding are changing, and conservative doctrine is changing with it,” he wrote. “Once, the government was imposing morally conservative conditions, like the anti-abortion counseling rule in Rust or the anti-legalized-prostitution condition in the 2003 law. Now, in the wake of the Affordable Care Act, the conditions imposed by government can be liberal — like Obamacare’s so-called contraceptive mandate that requires big organizations to provide contraceptives as part of their health-insurance plans. Conservatives are growing concerned that government conditions might impinge on individual liberty. Roberts and Alito, younger than Scalia and Thomas (and less constrained by long voting records), are more affected by this shift.” In other words, while anti-HIV efforts have been handed a major victory today, beware of conservatives bearing gifts.

Irin Carmon

Irin Carmon is a staff writer for Salon. Follow her on Twitter at @irincarmon or email her at icarmon@salon.com.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails

    Ten spectacular graphic novels from 2014

    Beautiful Darkness by Fabien Vehlmann & Kerascoët
    Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

    Ten spectacular graphic novels from 2014

    Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
    Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

    Ten spectacular graphic novels from 2014

    Here by Richard McGuire
    A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

    Ten spectacular graphic novels from 2014

    Kill My Mother by Jules Feiffer
    The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

    Ten spectacular graphic novels from 2014

    The Motherless Oven by Rob Davis
    This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

    Ten spectacular graphic novels from 2014

    NOBROW 9: It's Oh So Quiet
    For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

    Ten spectacular graphic novels from 2014

    Over Easy by Mimi Pond
    When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

    Ten spectacular graphic novels from 2014

    The Shadow Hero by Gene Luen Yang and Sonny Liew
    You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

    Ten spectacular graphic novels from 2014

    Shoplifter by Michael Cho
    Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

    Ten spectacular graphic novels from 2014

    Through the Woods by Emily Carroll
    This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

  • Recent Slide Shows



Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>