Nomination of Elizabeth Darling

Floor Speech

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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 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 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.

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