I’m pleased to report that my Mayer Brown LLP colleagues Andrew Frey and Michael Rayfield and I have just filed a friend of the court brief on behalf of the Becket Fund for Religious Liberty and the Christian Legal Society in Agency for International Development v. Alliance for Open Society International, which will be argued before the U.S. Supreme Court later this month.
[T]he Leadership Against HIV/AIDS, Tuberculosis and Malaria Act, more succinctly known as the Leadership Act … authorized the spending of billions of dollars to put the United States in the forefront of efforts to stop the global pandemics…. [Part of the law] required organizations receiving federal funds under the program to have an explicit policy of opposing prostitution and trafficking….
The heart of the dispute [in the case] is a critical question: are the requirements attached to the federal program simply an example of conditions that the government may impose on federal spending, or do the regulations go too far because they compel organizations receiving funds to espouse the government’s point of view about prostitution? …
The U.S. Court of Appeals for the Second Circuit affirmed [a] preliminary injunction [against the law], finding that the federal regulation of fund recipients went “well beyond” permissible conditions attached to government spending. The Second Circuit said the condition “compels recipients to espouse the government’s viewpoint” in violation of the free speech guarantee of the First Amendment….
The U.S. Solicitor General petitioned the Supreme Court to hear the case and argues that the regulations are well within Congress’s authority to attach conditions to federal spending….
The Becket/CLS brief isn’t very long, and — I like to think — is fairly readable, including by laypeople; I hope some of you find it interesting.