If Congress decides that the best way to fight HIV/AIDS overseas is to work to reduce risky sexual behavior, not just to provide treatment to people after they have been infected, shouldn’t it be able to require organizations seeking grants from the program to have a policy “explicitly opposing prostitution and sex trafficking?” Sounds like a reasonable requirement, but on April 22 the US Supreme Court will hear lawyers argue that the congressional requirement is an unconstitutional restriction on free speech.

Faith-based organizations should hope those lawyers win and that the congressional policy is struck down.

The case is USAID v. Alliance for Open Society International and the right decision is not an easy call. It is appealing to some faith-based groups to have the federal government weigh in against risky sex. Other groups, while worried about government control of the speech of grantees, regard the restriction in this particular program as acceptably designed (see the amicus brief by the American Center for Law and Justice).

An amicus brief filed by the Christian Legal Society and the Becket Fund for Religious Liberty, however, points to the far-reaching threat to faith-based services posed by the government’s restriction if it is allowed by the Supreme Court to stand.

The brief points out that the Supreme Court regards not only government grants and contracts but also tax exemptions and the tax deduction for charitable contributions to be forms of government financial support for private organizations. That means that all faith-based organizations (and secular groups, too) have a big stake in the Court’s decision in this case–not just organizations that receive government dollars to provide services.

What’s the danger? Here’s how the brief summarizes it:

“Under the government’s theory in this case, federal, state, and local governments may use . . . government funding programs as leverage to pressure organizations into affirmatively expressing particular government-prescribed views as the organizations’ own. For instance, if a government wants to pressure such groups to avow that they support or oppose contraception, pacifism, abortion, the death penalty, assisted suicide, or whatever other policy those then in control of the government choose, then that government would be free to do so.”

As the brief explains, government can legitimately require an organization operating a program with government funds not to undermine the program by contradicting its goals and assumptions as the services are provided. But the government goes too far when, as in the anti-HIV/AIDS program, it actually demands that the organization itself, or an affiliate of it, must speak out to endorse the government’s views. Then the only way the organization can refrain from singing from the government’s songbook is by avoiding the government financial support–including tax exempt status and the ability to receive tax-deductible contributions.

The government’s claimed power is so expansive, the brief says, that “every participant in virtually any government program could be required to expressly state its endorsement of whatever viewpoint the government prescribes.”

Given everything the Court interprets to be government support, the government’s position requires faith-based and other organizations to choose between equally unpalatable options. They can avoid parroting the government’s views by avoiding the government’s support–including 501(c)(3) status–but then they’ll be minor organizations in society. Or they can agree to say what the government requires–becoming able to play a larger role in society, just not the role they desire to play, as they are forced to proclaim views they do not consider right. One way or the other, faith-based organizations will be marginalized.

Congress had good intentions when it set out the requirement that grantees must affirm their opposition to prostitution to take part in the overseas fight against HIV/AIDS. But the requirement is too broad. The Supreme Court ought to force a trip back to the drawing board. And it should also send an unmistakable signal to the federal government to stop encroaching on the rightful freedoms of private, including faith-based, organizations.