MONTGOMERY — Liberal groups lost in court again on Tuesday after U.S. District Judge Liles Burke denied subpoenas aimed at the Eagle Forum of Alabama and the Alabama Citizens Action Program (ALCAP) in a lawsuit against the state of Alabama's transgender surgery ban.
Burke quashed the first round of subpoenas filed by the Department of Justice (DOJ), an intervenor in the case against Eagle Forum of Alabama (EFA) in 2022.
In September 2022, the DOJ demanded all information related to the non-profit's legislative activities promoting the Alabama Vulnerable Child Compassion and Protection Act (VCAP), which banned transgender hormones and surgeries for people under 19.
That subpoena demanded all information related to the non-profit's legislative activities promoting the law since 2017. The documents sought by the current subpoena were among those sought by the 2022 subpoena, which Burke quashed in its entirety as being "unlikely to reveal or lead any information that would help resolve the fundamental issue in this case" and have "little – if any – relevance for purposes of discovery."
The second round of subpoenas was sent out to even more groups in late January. This time, the subpoenas were sent by individual plaintiffs suing the state. Liberal groups involved in the lawsuit include the Human Rights Campaign and the Southern Poverty Law Center. According to legal documents in the lawsuit, other groups targeted with subpoenas by plaintiffs were ALCAP, Alabama Policy Institute, American College of Pediatricians, American Principles Project, Independent Women's Forum, Moms for Liberty and Society for Evidence Based Gender Medicine.
"Today, (Burke) comes in and he lets us make a couple of brief statements and then again he asks the plaintiff's lawyer, 'What are we doing here? Didn't you get the message last time?' Extraordinary statement by him. It's just recognizing that we've got free speech rights. Old (ALCAP President) Greg (Davis) goes over to the State House everyday and he exercises those. He doesn't have to come over here and answer to these people why he's over there doing that. That's what it's about," Eric Johnston, an attorney representing ALCAP, told 1819 News on Tuesday. "The legislature does what it does. We try to influence it one way or another and we don't always win. This idea that somehow we're guilty of creating some unconstitutional conflict on the people who have these gender dysphoria issues is ridiculous. I think the plaintiffs are grasping at straws trying to figure out how to make their case."
Alabama Attorney General Steve Marshall told 1819 News on Tuesday, “We are grateful that the court has again protected the rights of Alabama citizens to voice concerns with their elected representatives without having to turn over their communications to the SPLC.”
“The communications the SPLC sought from Eagle Forum and the American Citizens Action Program were wholly irrelevant to the question before the court, which is whether the Constitution prohibits Alabama from requiring minors to reach the age of majority before consenting to life-altering sex-modification procedures. The court was right to quash the subpoena,” Marshall said.
The plaintiffs also agreed in court on Tuesday to pay Eagle Forum of Alabama and ALCAP's attorneys fees.
"As Yogi Berra said, 'It's like déjà vu all over again,'" Kristen A. Ullman, president of the national Eagle Forum organization, said in a statement after the Tuesday hearing. "As I said almost two years ago when the DOJ tried and failed to silence citizen advocacy, 'this unprecedented, massive demand for information unrelated to the issues before the court is a blatant attempt to intimidate and silence a non-party organization and crush its Constitutionally protected rights to educate others, petition the government, and speak freely.' We will continue to fight for the rights of all Americans to speak out without fear of harassment and intimidation."
Eagle Forum of Alabama officials said in a press release on Tuesday they decided to become involved in the issue after hearing from citizens in Alabama, including parents, doctors, lawyers and guidance counselors, about their concerns for otherwise healthy children who want to transition to the opposite sex.
VCAP became effective on May 8, 2022, following consideration in three successive legislative sessions, including seven public hearings and passionate legislative campaigns conducted by proponent and opponent advocacy groups and individuals. The final passage was by large majorities in both Alabama chambers.
"Eagle Forum of Alabama is grateful to have another 'day in court' to defend the ability of all private citizen advocates and non-profits to engage in the legislative process regardless of their viewpoint," Ullman said. "EFA is a completely private association that is not a party to the lawsuit and has no legislative capacity. Its viewpoints and communications have no bearing on VCAPs meaning or constitutionality (or lack thereof), the question at issue in the challenge to the statute. But we know that if the parties to the lawsuit can weaponize a subpoena, private citizens can be unduly burdened and prevented from engaging in our democratic republic form of government. Freedom of speech, association, and petition will be at risk if this type of lawfare is allowed to continue."
To connect with the author of this story or to comment, email caleb.taylor@1819News.com.
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