This case is about far more than prostitution and HIV/AIDS. The expansion of the modern regulatory state has increasingly led to financial involvement of the government with private organizations — including churches, religious universities, and religious charities — in ways that potentially give the government power over those organizations. Tax exemptions, which have been treated by this Court as tantamount to the provision of funds, are a prominent example. Student loans and grants, which are likewise treated as equivalent to direct payments to the university, are another. Numerous other examples exist, including the direct grants at issue here.
Under the government’s theory in this case, federal, state, and local governments may use these kinds of 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.
For the reasons discussed below, that cannot be right. Such a “get with the program” power would let the government badly distort the marketplace of ideas by strengthening groups that toe the government line and financially crippling groups that refuse to say what the government demands. And such a power to coerce ideological conformity would unacceptably burden religious groups’ rights to speak or not speak in accordance with the truth as they see it. “[N]o 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.” West Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943). Likewise, no official should be permitted to acquire such a power by using the government’s vast resources as a tool for control of groups that participate in government programs.