A return to the culture wars in historic arguments

The U.S. Supreme Court steps back into the culture wars this week in telephonic arguments involving birth control and prostitution.

The issues are not new to the Justices. In fact, the cases they will hear on Tuesday and Wednesday are sequels to earlier cases that they decided. In the middle of a pandemic which is triggering new legal and constitutional questions, birth control and prostitution challenges may seem relatively archaic, but the culture wars go on and on.

Tuesday's case involves the First Amendment's guarantee of free speech and an anti-prostitution pledge in a 2003 law known as the Leadership Act. Under the act, Congress has appropriated billions of dollars over the years to fight HIV/AIDS abroad, subject to certain funding conditions. One of the conditions is that no money or assistance will go to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.

The Alliance for Open Society International, a U.S.-based nonprofit public charity, does not support prostitution or sex trafficking, but it objected to the condition that it adopt an explicit policy opposing prostitution. The organization explained that such a policy “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.” The U.S. Department of Justice initially decided that the policy could apply only to foreign organizations engaged in activities overseas. But in 2005, the department reconsidered and said the policy applied to U.S.-based funding groups as well.

The Alliance challenged the policy as a violation of the First Amendment. The case ultimately went to the U.S. Supreme Court. The Justices in a 2013 decision agreed with the Alliance. “By demanding that funding recipients adopt—as their own—the Government’s view on an issue of public concern,” the funding condition “by its very nature affects ‘protected conduct outside the scope of the federally funded program,’ ” wrote Chief Justice John Roberts Jr. for the 6-2 majority. Justices Antonin Scalia and Clarence Thomas dissented; Justice Elena Kagan was recused.

The Justices' decision, however, was not the end of the fight. The Alliance and similar organizations went back to court when the government applied the anti-prostitution pledge to their foreign affiliates who "share the same name, logo, brand, and mission and speak with a single voice that is imputed to" them. The organizations won an injunction blocking the policy condition from being applied to their foreign affiliates.

The Justices now will hear the Trump Administration's Justice Department's appeal in U.S. Agency for International Development v. Alliance for Open Society International. The government argues that the court's doctrine on unconstitutional conditions applies only to entities that have constitutional rights. Foreign entities operating abroad have no constitutional rights and so the funding condition applies to them, contends the department.

The department says the Alliance and its co-challengers admit that they and their foreign affiliates are legally distinct. "Under basic tenets of corporate law, distinct legal entities have distinct responsibilities and rights," even if they share similar names, logos, and brands, according to the department.

The Alliance counters that this case has nothing to do with the rights of foreign organizations or any effort by them to claim First Amendment rights. What the government fails to accept or understand is that the U.S.-based organizations and their foreign affiliates "present a unified front." Under the funding condition, it is the U.S.-based organization that must compel its affiliate to take the pledge and police compliance, and that restricts the U.S.-based organization's own speech in violation of the First Amendment.

The Roberts Supreme Court has been a very strong First Amendment free speech court. Roberts and before he retired, Justice Anthony Kennedy, have been especially vigorous protectors of speech, even speech that most people would find despicable. But the court's composition has changed since it first faced this issue in 2013. It will be interesting to watch where the newest Justices—Neil Gorsuch and Brett Kavanaugh—come down on the issue.

Religion and Contraception

On Wednesday, the Justices take up two cases that have been consolidated for arguments: Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania. They mark the fifth time in eight years that the Justices have wrestled with the legal fallout from the Affordable Care Act, commonly known as Obamacare, whose constitutionality the court upheld in 2012.

This time, the legal dispute focuses on the law's so-called birth control mandate. The law requires health insurers to provide free contraceptive coverage to women as part of comprehensive preventive care and screenings. In 2013, the Obama Administration approved exemptions for churches and other houses of worship with religious objections to providing the birth control coverage to their employees. It also created an "opt-out" procedure for religious nonprofits with objections to the coverage.

The Supreme Court considered the act again in 2014 when a closely held corporation, Hobby Lobby, objected on religious grounds to the birth control coverage requirement. A divided court ruled that because the birth control coverage requirement forced religious corporations to fund what they considered abortion methods against their religious beliefs or face fines, the mandate violated the Religious Freedom Restoration Act. The exemption and opt-out procedure for religious nonprofits should apply to religious for-profits as well.

Fast forward to 2016 and the Supreme Court hears arguments by religious nonprofits objecting to the government's opt-out process. They contend that notifying their insurers or a federal agency of their objections to the coverage makes them complicit in providing coverage and burdens their religion. The Justices did not decide the issue but sent the cases back to the lower courts to work on a compromise.

In Wednesday's cases, the Trump Administration and Little Sisters are defending the administration's broad expansion of the exemption for religious objections. In 2017, the administration issued new rules expanding the exemption for certain religious employers and creating a new exemption for certain entities with moral objections.

There are several questions before the Justices but two are most important. The first rather technical one asks if the Trump administration violated the federal Administrative Procedure Act by failing to provide legally required notice and public comment before issuing rules on the expanded exemptions. Pennsylvania and New Jersey argue the administration's failure is fatal to the rules. The Trump Administration counters that even if the interim rules violated the act, the final rules did not: "Nothing in the APA suggests that procedural defects in the interim rules invalidate the final rules."

The second major question is whether the agencies that issued the rules expanding the exemption had the authority to do so under the Affordable Care Act and the Religious Freedom Restoration Act. The two sides disagree about what authority and discretion the texts of those laws gives to the government agencies responsible for implementing the health insurance law.

The Justices generally have divided along ideological lines in their Affordable Care Act rulings. The Hobby Lobby decision was a bitter 5-4 split. The intersection of birth control, abortion, and religion continues to be a volatile combination in the Supreme Court.

The cases that the Justices will hear on May 4, 5, 6, 11, 12, and 13, are being argued by some of the best Supreme Court lawyers in the country. Remember: you can tune in real-time to hear those arguments at 10 a.m. ET each day. The live audio feed is being provided to Fox News, the Associated Press, and C-Span (which will broadcast them on television, online at C-Span.org and on the C-Span Radio app.).

In the words of the great Ed Sullivan (yes, I know I'm dating myself now), it should be "a really good show."

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.