The Biden administration has gone nuclear in the culture wars by launching an attack on the First Amendment rights of Americans daring to challenge the far-left’s transgender agenda, two new court filings from Wednesday reveal.
On Wednesday, the attorneys representing the Eagle Forum of Alabama and the Southeast Law Institute filed two separate motions to quash documents subpoenaed by the United States as part of the discovery in the ongoing case of Eknes-Tucker v. Marshall. In Eknes-Tucker, four transgender-identifying children, their parents, and several others sued the governor of Alabama and other state officials, challenging the constitutionality of the Alabama Vulnerable Child Compassion and Protection Act (“Vulnerable Child Act”).
Signed into law by Alabama’s governor on April 8, 2022, the Vulnerable Child Act prohibits the administration of puberty blockers, cross-sex hormones, or surgical procedures performed on minors “if the practice is performed for the purpose of attempting to alter the appearance of or affirm the minor’s perception of his or her gender or sex, if that appearance or perception is inconsistent with the minor’s sex.”
The plaintiffs in Eknes-Tucker argue the Vulnerable Child Act violates the constitutional right of parents to obtain medical treatment for their children and the equal-protection rights of transgender minors. The United States joined the lawsuit as a plaintiff, also arguing that the Alabama law violates the federal Constitution’s guarantee of equal protection under the law.
In May, federal Judge Liles Burke, a Donald Trump appointee, entered a preliminary injunction prohibiting Alabama from enforcing those portions of the act that ban the use of puberty blockers and wrong-sex hormones. Alabama appealed the preliminary injunction order to the 11th Circuit Court of Appeals, and the federal appellate court has scheduled a tentative hearing for the week of November 14, 2022.
While Alabama’s appeal of the preliminary injunction order remains pending at the 11th Circuit, discovery is underway at the trial court level. And as part of that discovery, the United States government, in what appears to be a first-of-its-kind move, has subpoenaed scores of documents from at least two non-profit groups involved in lobbying for the passage of the Vulnerable Child Act, namely the Eagle Forum and the Southwest Law Institute.
In its motion to quash the government’s subpoena, the Eagle Forum, which is not a party to the Eknes-Tucker case, explained that it “is a grassroots, non-profit Alabama corporation devoted to the cause of protecting Alabama’s families in public policy initiatives and reform efforts.” Designated as a 501(c)(4) organization, it has only one full-time paid employee and one part-time paid administrative assistant, with nearly all of the non-profit’s work performed by volunteers.
According to its brief, the Eagle Forum became gravely concerned about the provision of gender-bending medical treatment to minors in Alabama and worked to ban such permanently damaging procedures. Over the course of several years, the Eagles Forum furthered this goal by making speeches to various groups, communicating with members of the Alabama Legislature, informing its membership of the issues, and encouraging its members to contact their legislators about this subject, “joining with other grassroots organizations with similar concerns in these efforts, assisting in drafting possible legislation to be considered by sponsoring legislators, and arranging for witnesses who could testify at legislative committee hearings.”
In the subpoena issued for the Eagle Forum in August, the United States demanded that the non-profit produce 11 broad categories of documents of information, spanning from January 1, 2017, through the present day. Generally speaking, the subpoena sought documents revealing the Eagle Forum’s efforts to push for passage of the Vulnerable Child Act, including communications with members and legislators.
The government also issued a subpoena to the Southeast Law Institute, seeking the same types of documents. The Southeast Law Institute, like the Eagle Forum, is a non-profit organization and not a party to the underlying case. The non-profit is a 501(c)(3) “devoted to providing legal services without charge on the issues of sanctity of life, religious freedom, family issues and others,” according to its brief. The Southeast Law Institute further notes that it has no employees and uses the services of volunteer lawyers.
One of its volunteer lawyers, A. Eric Johnston, “provided bill drafting assistance and legal research” during the Alabama Legislature’s 2020, 2021, and 2022 sessions. “These efforts,” the Southeast Law Institute explained, “include[ed] discussions with Margaret Clark, General Counsel of Eagle Forum of Alabama, other lawyers and legislators.”
In seeking to quash the subpoenas, both the Eagle Forum and the Southeast Law Institute argue that their communications with Alabama legislators are irrelevant to the question of the constitutionality of the Vulnerable Child Act because precedent makes clear that a legislator’s intent in passing a law does not render it unconstitutional. So what Eagle Forum and Southeast Law said to each other, to their members, and to the legislators lobbied, is irrelevant.
The Eagle Forum and the Southeast Law Institute further argue that the subpoena infringes on their First Amendment rights. Here, too, the non-profits are correct.
The First Amendment protects the right to speak, associate and assemble, and petition the government. And demanding the communications of private non-profit organizations involved in lobbying will chill the public’s desire to speak, to join, to petition, and to lobby, and the court should accordingly quash the subpoenas.
But quashing the subpoenas is not enough: The Biden administration must be called to task for this outrageous tactic that serves no purpose but to intimidate and silence its political enemies.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.
Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.
As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.