[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.