Boe v. Marshall - Alabama Center for Law and Liberty

Boe
v.
Marshall

ACLL Role:

Case Start Date:

Deciding Court:

Original Court:

Practice Area(s):

Amicus

April 19, 2022

U.S. District Court for the Middle District of Alabama

Limited Government, Strong Families

CASE SNAPSHOT

In 2022, Eagle Forum of Alabama successfully lobbied the Alabama Legislature to pass the Vulnerable Child Compassion and Protection Act (“VCAP”), which prohibited Alabama doctors from giving minors struggling with gender dysphoria sex-altering surgeries, puberty blockers, or cross-sex hormones. The ACLU immediately sued, and Merrick Garland’s Justice Department jumped in. The Justice Department hit Eagle Forum of Alabama with a massive subpoena, requiring it to turn over virtually all documents and communications that went into lobbying for VCAP. Eagle Forum filed a motion to quash the subpoena, and ACLL joined an amicus brief, accompanied by 52 other conservative organizations and individuals, warning the court of the free speech violations that the DOJ was imposing through this inquisition. Fortunately, the judge agreed and quashed the subpoena.

STATUS

ACLL joined a friend-of-the-court brief at the Eleventh Circuit on September 20, 2022.

FOR THE MEDIA

CASE SUMMARY

Background

In 2022, the Alabama Legislature passed the Vulnerable Child Compassion and Protection Act (“VCAP”). In an age where there’s no gender-confusion train that the Left won’t ride, Alabama’s children were at risk for being subjected to medical procedures that would have had permanent effects that they could not undo later. Studies have shown that minors struggling with gender dysphoria typically grow out of it by the time adolescence concludes. However, the Left has been pushing the narrative that such children need to be given puberty blockers, cross-sex hormones, and even sex-altering surgeries to affirm their gender identity. These procedures will permanently scar children who come to realize later that they made a mistake.

For that reason, Eagle Forum of Alabama – one of ACLL’s closest allies in this State – encouraged the Legislature to pass VCAP, which did three important things: (1) prohibited sex-altering surgeries on minors, (2) prohibited giving boys estrogen and girls testosterone for the sake of helping them appear to be the opposite biological sex, and (3) giving them puberty blockers.

The ACLU immediately sued, and Merrick Garland’s Justice Department jumped in with a vengeance. In a move that shocked the legal world nationwide, the DOJ subpoenaed Eagle Forum for essentially all of the documents and communications it had that went into lobbying for the bill. This wasn’t a subpoena: it was an inquisition.

The Free Speech Issues

Make no mistake: the Justice Department’s objectives were twofold: (1) punish Eagle Forum of Alabama for defying the Biden administration’s transgender orthodoxy and protecting our children, and (2) send a message that any organization that lobbies for conservative causes will be subject to a grueling interrogation and a costly legal battle later.

As conservatives, libertarians, and classic liberals all acknowledge, such retaliation for engaging in the democratic process violates the First Amendment’s guarantee of free speech. Subjecting Eagle Forum to such an unprecedented and burdensome process for talking to the people’s representatives – which is what a republican government is supposed to look like – was designed to retaliate for engaging in speech that the Biden administration did not like. It would also create what the law calls a “chilling effect” on speech in the future by making other conservatives unlikely to talk to their representatives for fear of retaliation.

The Conservative Calvary Shows Up

Fortunately, the word of the DOJ’s shocking actions spread quickly, and prominent conservatives from across the country showed up to support Eagle Forum. The Washington D.C. firm of Boyden Gray and Associates and the Birmingham firm of Wallace Jordan teamed up and wrote a powerful amicus brief warning the court that it should quash the subpoena or free speech would be quashed in the process. ACLL was going to write its own amicus brief, but after reviewing the brief that Boyden Gray and Wallace Jordan wrote, it determined that they nailed it and another brief repeating the same points would be unnecessarily duplicative. Thus, ACLL joined the brief.

Overall, 53 organizations, federal and state legislators, and individual citizens joined the brief. The amici included not only ACLL but also the American Family Association, Americans United for Life, Concerned Women for America, Alabama’s entire Republican delegation from the U.S. House of Representatives, and a number of Alabama state legislators.

Fortunately, when the hearing date came, the judge agreed and quashed the subpoena. At the end of the proceedings, it even asked Eagle Forum’s attorneys if it wanted to pursue sanctions against the Justice Department for such egregious conduct. The conservative legal world celebrated because, if the Justice Department would have gotten away with this, all of us would have been next.

Importance to Limited Government and Strong Families

Totalitarian regimes around the world have consistently crushed speech they did not like as a way to keep a grip on the People’s hearts and minds. The American guarantee of free speech is designed to ensure that the government cannot ever punish people for what they believe or discourage them from engaging in the democratic process. Thus, this case needed to be fought hard, or else free speech would be in serious jeopardy.

In addition, ACLL unapologetically believes that there are only two sexes: male and female. Minors struggling with gender dysphoria need real help, not harm disguised as help. Families thrive when God’s design for sex is honored instead of turned on its head.

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