By Basil Katz
NEW YORK (Reuters) - Anti-HIV/AIDS groups cannot be required to formally denounce prostitution in order to receive U.S. funding, a federal appeals court ruled on Wednesday, finding that the policy was unconstitutional.
In a split 2-1 decision, the 2nd U.S. Circuit Court of Appeals found that nonprofit groups could not be forced to adopt a policy opposing prostitution in order to receive funding from a 2003 spending bill passed by the U.S. Congress.
The appeals court upheld a lower court's injunction barring U.S. agencies from enforcing the requirement on the grounds that it violated their free speech.
"Congress's spending power, while broad, is not unlimited, and other constitutional provisions may provide an independent bar to the conditional grant of federal funds," U.S. Circuit Judge Barrington Parker wrote in a decision joined by Judge Rosemary Pooler. Judge Chester Straub dissented.
"The government may not place a condition on the receipt of a benefit or subsidy that infringes upon the recipient's constitutionally protected rights," the ruling said.
The funds in question come from the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, whose guidelines state that "no funds made available to carry out this Act . . . may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution."
In dissent, Straub called on the U.S. Supreme Court to take up the case to "set us straight" on possible unconstitutional conditions on government funding.
The law was renewed in 2008 and slightly modified.
(Reporting by Basil Katz)