[Congressional Record Volume 165, Number 130 (Wednesday, July 31, 2019)]
[Senate]
[Pages S5222-S5224]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                    Nomination of Elizabeth Darling

  Mr. WYDEN. Mr. President, in the coming hours, the Senate could take 
up the nomination of Elizabeth Darling to serve as Commissioner for 
Children, Youth, and Families at the Department of Health and Human 
Services. If she is confirmed to that role, she would be a key official 
overseeing the foster care system.
  I previously had a hold on Ms. Darling's nomination, and I am going 
to begin my remarks by saying my hold was never about her personally or 
about concerns with her qualifications. In fact, I believe she is 
qualified for the position. I placed a hold on her nomination because 
of serious problems at the Department of Health and Human Services 
affecting child welfare policies that would fall in her area of 
jurisdiction if she is confirmed. I think this involves a matter the 
distinguished Presiding Officer of the Senate might be particularly 
interested in at this point.
  I authored, with the former Finance Committee Chair, Senator Orrin 
Hatch, landmark families legislation called the Family First Prevention 
Services Act.
  Family First, that Chairman Hatch and I authored, is a once-in-a-
generation bipartisan update of child welfare laws in America, inspired 
to a great extent by Marian Wright Edelman, the head of the Children's 
Defense Fund. The implementation of that law, in my view, is moving too 
slowly.
  Last week, the Department of Health and Human Services followed 
through on a request from me and a group of colleagues from both 
parties and both Chambers to open up the availability of prevention 
programs for States that Chairman Hatch and I felt so strongly about 
under Family First. This was an important first step, and, if Ms. 
Darling is confirmed, I expect to see the Department take more.
  What I would like to address for a few minutes, though, is a deeply 
discriminatory policy change that has been made by the Trump 
administration in the child welfare system. Until the Trump 
administration intervened, Health and Human Services regulations 
explicitly banned religious discrimination in federally funded Social 
Services programs, discrimination that should be barred by our core 
constitutional protections. Unfortunately, under this administration, 
that safeguard is no more.
  This year, the Trump administration has set a precedent that foster 
care agencies that receive Federal dollars can turn away qualified 
prospective foster parents simply because they are Catholic, Jewish, 
Muslim, Hindu, Buddhist, Mormon, or any other faith, or simply because 
they are nonbelievers.
  What this is all about, in short, is a green light for taxpayer-
funded discrimination on the basis of religion. It stems from a case 
involving Miracle Hill Ministries, a foster agency in South Carolina. 
Miracle Hill is a faith-based social service organization--the largest 
provider of foster care services in South Carolina. It serves around 15 
percent of the State's foster care population. I have no reason to 
doubt that Miracle Hill has a lot of wonderful staff and volunteers who 
wish to do a great deal of good work.
  Last year, the Governor of South Carolina asked the Department of 
Health and Human Services for a waiver that would allow Miracle Hill to 
continue receiving taxpayer dollars despite its practice of turning 
away qualified foster parents based solely on their religious beliefs. 
In effect, it was a request for a loophole to evade the Federal policy 
banning religious discrimination. The Department of Health and Human 
Services OK'd it.
  At a time--the Presiding Officer of the Senate and I have talked 
about this--when there are too many vulnerable kids and too few safe 
foster homes in America, the Trump administration actually gave the 
largest foster care organization in South Carolina permission to turn 
away prospective foster parents because of their faith.
  This is not an academic matter. Let me give an example of the 
consequences. In 2018, Beth Lesser--a woman who unintentionally brought 
this issue to light--went to Miracle

[[Page S5223]]

Hill Ministries to volunteer as a foster mentor. Before she moved to 
South Carolina, she was a foster parent in Florida. You would think any 
foster care organization would be thrilled to have Ms. Lesser walk 
through their door--an experienced foster care parent coming to 
volunteer her time, her energy, and her love--but during orientation 
training, Miracle Hill found what they consider to be a problem: Ms. 
Lesser, like me, is Jewish. After Miracle Hill discovered Ms. Lesser's 
religion, they quickly turned her away.
  Ms. Lesser is not the only person to experience this discrimination. 
Another was Aimee Madonna, who grew up in a foster care home and has 
three kids of her own. She contacted Miracle Hill and volunteered to 
open her home in the screening process. But when Miracle Hill learned 
that Ms. Madonna is Catholic, she got turned away too. She was 
devastated by the decision. In February, she sued the State of South 
Carolina and the Department of Health and Human Services over this 
unconstitutional discrimination. I commend her for fighting for her 
rights, and I believe she speaks for people of so many faiths whom I 
mentioned earlier.
  I do want to explain why I find this precedent the Trump 
administration has set to be so objectionable, starting with the most 
obvious.
  It is horrendous policy because it is going to hurt vulnerable kids 
all across this country, particularly if and when the Trump 
administration hands out more waivers in more States. If they do it 
this way, it is going to reduce the number of safe and loving foster 
homes available to youngsters in the child welfare system. That is the 
wrong way to go.
  This policy is going to limit the diversity of foster homes and 
foster parents and growing up around people of different views and 
philosophies and religions. Diversity is important for kids. That is 
particularly important for LGBTQ youth, who make up one in five kids in 
foster care. There are homes where LGBTQ kids are not safe. They 
benefit from the chance to grow up in these more inclusive 
environments, where there are more diverse families who respect their 
sexual orientation and their gender identity.
  It raises troubling questions about what is going to happen to 
children who were raised outside of evangelical Christianity before 
they entered the child welfare system. What is going to happen to a 
Jewish kid or a Muslim kid or a Mormon kid who is placed in a home 
where they are considered heretics?
  This is a personal matter for me. That kid could have been me. I was 
so proud of my parents. They fled the Nazis in the thirties. Not all 
got out. All my dad--just about the most red, white, and blue fellow 
around--wanted to do was serve in our Army so he could drop propaganda 
pamphlets on the Nazis, telling them they ought to give up. You can 
read about my dad, Peter Wyden, in the Holocaust Museum. I am so very, 
very proud of my dad.
  I thought about, for example, what might have happened if my parents 
had died in a car crash when I was 12 years old and I had been put in 
one of these evangelical families through a foster agency that 
discriminates. I could have been told that everything my wonderful, 
patriotic, Jewish parents had taught me to believe was wrong; that my 
parents--that my dad, who was honored in the Holocaust Museum--that his 
beliefs were sinful. It would have added a lot more difficulty to a 
situation that was already traumatic.
  The thought that children who have lost their parents could have 
another part of their identity stripped away is appalling. That 
religious discrimination in particular, that fundamentally un-American 
act--the idea that it is going to be propped up with Federal tax 
dollars is just wrong.
  In my view, what the Trump administration has done with the South 
Carolina waiver is unconstitutional. I also believe it is the latest 
iteration of a much larger assault on individual religious liberty.
  From a legal perspective, the Department of Health and Human Services 
justifies its discriminatory waiver by pointing to the Religious 
Freedom Restoration Act, what is known as RFRA. Here is the problem: 
That law was intended to stop religious discrimination, not promote it. 
In this case, however, the administration is interpreting that law to 
protect only the religious freedom of Miracle Hill, not the freedom of 
Jewish or Catholic or Muslim or Buddhist individuals who want to become 
foster parents in South Carolina.
  HHS's waiver disregards the establishment clause in the First 
Amendment of the Constitution, which prohibits the government from 
``respecting an establishment of religion.'' This is a Federal agency 
using taxpayer dollars to elevate some religions above others. That is 
unconstitutional every way you cut it.
  The consequences at this point are limited to one State, but because 
of this precedent, that is one too many. It only takes one small step 
to set a harmful, dangerous precedent that will change everything. 
There are already rumors that HHS plans to turn this waiver into a 
nationwide policy. Make no mistake about it--that would be nationwide 
religious discrimination.
  The consequences of an action like that would reach far beyond our 
child welfare system. It is not much further down the road before out-
and-out discrimination against people of particular faiths, gender 
identities, and sexual orientations under the guise of religious 
freedom bleeds into other areas of American life. These debates are 
going to keep hitting the courts, and they are going to keep 
confronting the Congress. The Trump administration, Republican 
lawmakers, and Republican judges are ensuring that will happen.
  I mentioned at the outset that this debate is tied to a nomination 
the Senate may take up today--we will see about later in the week. It 
involves the Commissioner on Children, Youth, and Families at Health 
and Human Services. I made that judgment, after a lot of reflection, 
that I am not going to stand in the way of that vote. I believe Ms. 
Elizabeth Darling is qualified. But in making that judgment, I was not 
willing to let today pass without sounding an alarm on a very dangerous 
precedent the Trump administration has set in this field. This is about 
the prospect of State-sponsored religious discrimination. In this case, 
it is going to come down hardest on vulnerable kids in our country. I 
believe it is clear that what is happening is unconstitutional.
  I will close by saying again that there is bipartisan interest in 
improving our child welfare system. The distinguished Presiding Officer 
of the Senate is from Utah. I wish he could have seen Chairman Hatch 
and me work together on Families First. As you know, when Chairman 
Hatch got enthused about something, he was really enthused.
  Marian Wright Edelman came to both of us. This had been her dream for 
30 years, to try some fresh approaches in terms of helping these kids. 
In effect, what Families First does is it creates a third option. You 
have kids in homes where a parent might have gotten caught up in drugs 
or alcohol. We can get them some help. There is the foster care option. 
We have some very good foster care facilities in this country, and we 
have some that aren't exactly so great. So what Chairman Hatch and I 
said and what Democrats and Republicans on the Finance Committee said 
and what eventually the Congress on a bipartisan basis said was ``We 
are going to do better by these vulnerable kids,'' and we created a 
third option.
  One of them is built on a dream that I was part of. Back when I was 
director of the Gray Panthers, we were advocating for something called 
kinship care where grandparents could play a bigger role in stepping in 
and trying to help these vulnerable families, where maybe if a son had 
gotten in trouble with the law or a daughter-in-law had problems with 
alcohol and the like, the grandparent could help out.
  Under Families First, Chairman Hatch, a Republican, and I, a 
Democrat, said: We are going to try to help those families. We are 
going to try to give them help. If you have a son who has had problems 
with alcohol and drugs, they are going to be able to get some help. The 
grandparents can step in and get some help. We are going to create more 
options for the most vulnerable families and most vulnerable youngsters 
in America.
  We were moving forward. We were moving forward to be able to say--and 
this, of course, is not driven from Washington, DC; it is driven at the

[[Page S5224]]

State level. The Presiding Officer of the Senate is a former Governor. 
We were moving forward. Now we have the Trump administration seeking to 
move backward.
  There are nearly half a million kids in foster care in this country. 
Democrats and Republicans ought to keep building on the work that 
Chairman Hatch and I--and I was proud to be his partner, with him as 
the chairman, in this effort to help those kids stay safe and get ahead 
in life. Now the Trump administration is spending taxpayer dollars not 
to help those kids but to promote discrimination. That is not the way 
to help these kids, not the way to help these families. I hope my 
colleagues on both sides of the aisle will join me in opposing these 
policies of discrimination.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BOOZMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.