November 2023 Church & State Magazine - November 2023

Losing forward: AU’s case challenging discrimination in a tax-funded foster care program changed the debate

  Rachel Laser

Many of you probably remember the lawsuit Americans United filed on behalf of Aimee Maddonna, a Catholic woman and, if I may say, saintly mother of three, who wanted to share her loving home with foster kids but was turned away by a government-contracted and funded foster care agency in South Carolina solely because she was not evangelical Protestant. The case was aptly named Maddonna v. Department of Health and Human Services. I am sorry to report that last month, nearly five years after AU filed the lawsuit, a federal court ruled against her. 

We lost, in short, because of the U.S. Supreme Court’s recent decisions redefining “religious freedom” in a way that turns that concept into a device that promotes discrimination and harms others. This has left lower courts struggling to make sense of what remains of current church-state separation protections.

This column is about the importance of what I’ll call “losing forward.” It’s about how, even where we may lose a legal case, we can still gain tremendous ground. 

A proverb often attributed to Native Americans teaches: “Those who tell the stories rule the world.” Aimee’s story, highlighted by our case, may not have enabled church-state separationists to rule the world (at least not yet!), but it advanced our cause in several ways.

For example, it generated momentum for the Do No Harm Act, the bill AU helped craft that would prevent the misuse of the Religious Freedom Restoration Act to license discrimination and harm to others. During the 2019 reintroduction of the Do No Harm Act, the bill sponsors and endorsing organizations highlighted Aimee’s story to show the harm the bill could avoid. Aimee’s case then helped spur a June 2019 hearing in the House Committee on Education and Labor on the Do No Harm Act, where I testified and shared Aimee’s moving story. 

Since then, Aimee’s case has continued to be a key part of the work to fight discrimination in the foster care system and the misuse of RFRA. The case helped prompt a House Oversight Committee investigation of discrimination in the foster care system, and we provided the Committee with key information about Aimee’s case. It’s been featured in statements submitted for other committee hearings and in congressional briefings. It has come up in questions posed to executive branch officials by members of Congress. U.S. Sen. Ron Wyden (D-Ore.) even mentioned her story on the floor of the Senate. 

Aimee’s case also led to a change in the landmark bill prohibiting discrimination in the foster care system. When the John Lewis Every Child Deserves a Family Act was reintroduced in Congress in 2019, it for the first time protected against religious discrimination and the misuse of RFRA by federally funded foster care agencies. 

The case generated significant media attention. An Associated Press story about it went viral. I heard from dozens of people who were appalled by what happened to Aimee. And the lawsuit shifted the debate on discriminatory state bills. Now we could show that bills that were targeted at the LGBTQ+ community also allowed the type of discrimination Aimee faced; this made some legislators think twice. 

Aimee’s case also motivated the Biden administration to take quick action to reverse the Trump administration waiver that had allowed South Carolina to permit agencies like Miracle Hill to engage in religious discrimination.  

I recently reconnected with Aimee to share my disappointment over the loss of her case. “We may have lost the case in court,” Aimee told me, “but from the way the case has changed my life and the way that I’ve seen it talked about among my friends and family group, I have to assume that if it’s reaching any further than my immediate group, it wasn’t a full loss.” Aimee explained that the case “dragging on forever” gave people the opportunity to learn that Miracle Hill Ministries was turning away loving people like her from having any human contact with foster kids simply because they were not evangelical Christians. 

Toward the end of our conversation, Aimee shared: “If I can leave this earth with only the knowledge that I did my best to make this earth a better place for other people, then that’s good.” 

Good news for Aimee: she can check that box. Aimee’s case and story have already made America better and safer — for both foster kids and the loving families who want to help them. It’s a perfect example of losing forward.  

Rachel K. Laser is president and CEO of Americans United for Separation of Church and State. 

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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