Discrimination in Social Services

Dissecting The Day Of Decision: How AU Responds To The Supreme Court

  Rachel Laser

Editor’s Note: This post by Americans United President and CEO Rachel Laser originally appeared in the July-August 2021 issue of AU’s Church & State magazine. To subscribe and get Church & State delivered to your door every month, become a member of AU.

“You might be on your own for dinner tonight because the most important religious free­dom decision of the term could come down today.”

That line became my mantra to my family on countless Monday (and then also Thursday) mornings as I, like many Supreme Court watchers, waited for the Court to issue its opinion in Fulton v. Philadelphia. Mon­days, the Court’s main decision days, are also one of my designated dinner-making nights, so I had to put the troops on notice that it could turn into a “get it yourself” situation.

In case you are wondering, I didn’t get out of making dinner because the decision came down on a Thursday. But I did feel very proud of how incredibly well prepared our office was, and I’d like to tell you more about it.

The story begins on Feb. 24, 2020, the day the Supreme Court took the Fulton case, which challenged religion-based discrimination in taxpayer-funded foster care programs. Right away, our legal team began strat­egizing about the best way to weigh in. In order to help make the harm at stake in the case real, we submitted a friend-of-the-court brief telling the stories of our own plaintiffs – Aimee Maddonna and the couple Fatma Marouf and Bryn Esplin – and of two others who were also turned away because they couldn’t pass a govern­ment-funded agency’s religious litmus test.

On the day of the oral argument, Nov. 4, 2020, many of our lawyers tuned in to learn what we could about how the justices were approaching the case. We were happy to hear Aimee’s story referenced by the attorney arguing against a religion-based right to discriminate.

We started coming up with plans for possible out­comes and drafted different versions of press state­ments and talking points. We appointed Liz Hayes the staff point person to coordinate our departments’ actions and prepare a decision day plan.

For many weeks, at least a dozen of our staff joined me in tuning into the Supreme Court website at 10 a.m. on Mondays and soon Thursdays too. We awaited Fulton with pits in our stomachs, ready to put the plan into action. It was, among other things, a bonding experience.

U.S. Sen.  Ron Wyden of Oregon, a champion of religi­ous freedom, LGBTQ rights and foster children, had learned about Aimee’s case from her during AU’s Nat­ional Advo­cacy Summit lobby day last year. When he ap­proached us about highlighting Aimee’s story and others like it, we decided that Wyden and I would pre-record versions of a video featuring AU’s plaintiffs to be released when Fulton was decided.

When the decision finally came down on June 17, AU swung into action. It wasn’t quite what anyone expected, so we had to retool quickly. We hit social media with early thoughts and promised more analysis to come. Our Legal and Public Policy teams began reading the opinion immediately and provided a speedy analysis, which we used to get out a press statement that emphasized the narrow nature of the ruling. This was very important because some of the early stories about the decision mistakenly portrayed it as broad.

I hopped in an Uber and headed down to the Court, where AU’s Sarah Gillooly was coordinating an outdoor event. After talking with the Christian Broadcasting Net­work, I joined allies at the podium to react to Fulton. That evening, I delivered remarks as part of an online rally, and my colleague Dena Sher took part in a virtual town hall.

The next day, AU Legal Intern Chelsea Thomeer wrote a blog post to help our readers better understand the decision. The Legal Department later briefed our full staff on the ruling so everyone would have an under­standing of what it said and, more importantly, what it didn’t say.

Our always-prepared Rob Boston had arranged for this issue of the magazine to go out a little later than usual so it would include analysis of the ruling. You can read Liz’s story here.

Yeah, it’s always a whirlwind, but AU operated like the well-oiled machine that it is. And that’s thanks to our incredible members, who make it possible for us to function so effectively. While the Fulton ruling was narrow, there are plenty more challenges to come — and dinner nights to get out of.  With you by our side, AU will continue to play a critical role in the battles ahead!

PHOTO: Rachel Laser (right) is joined by allies in front of the U.S. Supreme Court.

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