The Foreign Service Journal, June 2007

religious references in its mission state- ments and governing documents.” This dramatic shift in approach blurs the separation of church and state required by the Constitution. For decades, U.S. policy has sought to avoid intermingling government pro- grams and religious proselytizing, aim- ing to abide by the First Amendment’s prohibition against a state religion and ensure that aid recipients are able to receive assistance, even if they don’t share the religion of the provider. Directive 04-08 and Executive Or- der 13279 alter the longstanding prac- tice that groups preach religion in one space and run government programs in another. Now organizations may schedule prayers or religious services immediately before or after dispens- ing taxpayer-funded aid. The adminis- tration rejected efforts to require groups to inform beneficiaries that they don’t have to attend religious ser- vices to get aid. Instead, groups are merely encouraged to make that clear. In addition, the directive and exec- utive order require USAID to provide data to the Office of Management and Budget regarding the participation of faith-based organizations in federally financed programs, to ensure that they are not being discriminated against. Opposing Work with Prostitutes On June 9, 2005, USAID issued an additional directive to further the administration’s ideological agenda. Policy Directive 05-04, which applies to PEPFAR’s $15 billion in funding, requires that any organization receiv- ing such funding sign a certification opposing prostitution and sex traffick- ing. The directive is significant because it replaces a 2004 policy on the same subject that applied only to for- eign, not U.S.-based, NGOs, and now extends the requirement to American organizations. The 2004 policy had specifically stated that this certification require- ment could not be applied to American organizations because — mirroring court precedent that the government could not restrict or require certain speech of U.S. organi- zations as a precondition for funding — the Department of Justice had determined it to be unconstitutional. The 2005 policy reflects the DOJ’s new opinion that “there are reason- able arguments to support [the] con- stitutionality” of the requirement. This groundbreaking directive was seen as a trial balloon to determine whether it would be possible to extend the Mexico City Policy to U.S. organi- zations, as well. The reaction was overwhelming: many American orga- nizations objected, and a group of them brought suit (Alliance for Open Society International et al. v. USAID). The lawsuit argued that the directive violates the plaintiffs’ constitutional rights in three ways: 1) it is unconstitu- tionally vague; 2) it requires grantees to adopt, as their own organization- wide policy, the ideologically-motivat- ed position of the U.S. government regarding sex work; and 3) it imposes an absolute bar on grantees using their own, nongovernmental funding to engage in speech activities. The directive constrains the provi- sion of public health funds to women of the developing world. First, the policy rescinds a previous require- ment that organizations utilize a mul- tisectoral approach to HIV/AIDS pre- vention. That requirement had been put in place by advocates of science- or evidence-based strategies, due to the effectiveness of the approach. The single-sector (e.g., abstinence- only) approach championed by con- servative Christian advocates was largely untested abroad. The directive’s language, which tracks the language of PEPFAR, means that, in spite of past USAID practice and scientific evidence re- garding effectiveness, the government may fund single-sector, ideologically- driven programs. In fact, it gives orga- nizations permission to ignore even the Bush administration’s own much-tout- ed ABC approach — a shorthand for promoting abstinence, being faithful and using condoms — and focus only, for example, on abstinence training. Second, the policy prohibits recip- ients from promoting the legalization or practice of prostitution or sex traf- ficking. This does not sound overly restrictive on its face, given that very few organizations promote the legal- ization of prostitution. However, the prohibition on promoting the practice of prostitution leaves room for an overly broad interpretation that could compromise any project that includes sex workers. Despite numerous re- quests for guidance on what the phrase means, neither USAID nor the Office of the Global AIDS Coor- dinator has offered any clarification. Because sex workers are a primary vector of HIV/AIDS transmission, they play a vital role in HIV preven- tion programs. By requiring NGOs to issue statements that condemn such practices, the policy acts to fur- ther stigmatize sex workers. It there- by exacerbates the difficulty of helping them protect their health and the health of others, undermines efforts to encourage healthier means of employ- ment, and ignores the social and eco- nomic vulnerability that drives people into such work. J U N E 2 0 0 7 / F O R E I G N S E R V I C E J O U R N A L 51 Organizations may schedule religious services before or after dispensing taxpayer- funded aid.