[Congressional Record Volume 152, Number 101 (Thursday, July 27, 2006)]
[Senate]
[Pages S8364-S8365]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  UNANIMOUS-CONSENT REQUEST--H.R. 5683

  Mr. SESSIONS. Madam President, I recently introduced a bill to 
preserve the cross that stands at the center of the Mt. Soledad 
Veterans Memorial in San Diego, CA, that is under attack by the ACLU to 
remove the cross. This bill would preserve that cross by having the 
U.S. Government purchase the property, as it stands, from the city of 
San Diego. This acquisition is the action that the U.S. Department of 
Justice tells us is needed to preserve this cross as a part of a 
memorial that has secular monuments also.
  Congressman Duncan Hunter has led the effort in the House. He is a 
San Diego Representative, chairman of the Armed Services Committee in 
the House. It passed 349 to 74 in the House. So we are trying to pass 
that in the Senate. It was called up for clearance by unanimous consent 
recently--I believe last night--and there was an objection from the 
Democratic side.
  It is time for us to move forward. I don't think there will be 
overwhelming opposition to it, as there was not in the House of 
Representatives.
  Therefore, I ask unanimous consent that the Senate proceed to the 
immediate consideration of H.R. 5683, the House bill, which was 
received from the House. I ask unanimous consent that the bill be read 
a third time and passed, the motion to reconsider be laid upon the 
table, and that any statements relating to the bill be printed in the 
Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. NELSON of Florida. I object. It has not been cleared.
  The PRESIDING OFFICER. Objection is heard.
  Mr. SESSIONS. Madam President, I understand that. I know the Senator 
from Florida is a strong advocate of veterans. I am sure this 
represents an objection from the Democratic side somewhere else. I am 
urging my colleagues to look at this legislation. It is a time-
sensitive matter because they have been sued. A Federal judge has 
ordered that, under California law, a $5,000 fine be imposed daily for 
failure to take this down, a symbol that has been up in the Mt. Soledad 
area for 54 years. Justice Kennedy of the U.S. Supreme Court has stayed 
that penalty to give us a chance to do something like this. I believe 
it is the right thing to do, and I want to share a few comments about 
it.
  In 1954, this 29-foot cross was erected by the Mt. Soledad Memorial 
Association to honor veterans of World War I, World War II, and the 
Korean war. It has stood on Mt. Soledad in San Diego, CA. The memorial 
now serves to honor American veterans of all wars, not just veterans of 
World War I, World War II, and Korea.
  Since 2000, the memorial association has added significant 
improvements to the property. The cross is surrounded by six granite 
walls. They are covered with over 1,600 plaques honoring individual 
veterans, with surrounding small pillars and brick pavers honoring 
veterans groups and supporters of the memorial, and community groups. A 
flagpole proudly flies the American flag.
  It is very important that we as a nation understand that we are free 
today and have the liberties we have because people have sacrificed. 
Our Nation is still able--although some apparently around the world may 
not be--to call on its people to sacrifice for a common national good, 
and all over America veterans groups and community action groups have 
created memorials since the beginning of the Republic to honor those 
who place their lives at risk for the liberty we are so happy to have 
today.
  It was not until 1989 that any person challenged the legality of this 
monument. At that time, Philip Paulson, a San Diego resident, sued the 
city, claiming that the cross display was unconstitutional and violated 
his civil rights.
  In 1991, a Federal judge agreed with him and prohibited the display 
of the cross on city property as a violation of the California 
Constitution, which guarantees the ``free exercise and enjoyment of 
religion without discrimination or preference.'' That is different from 
the language we have in the U.S. Constitution. So the city attempted to 
meet the court's demand and protect the integrity of the memorial by 
selling or donating the property to a private party. But Mr. Paulson 
challenged every potential transfer of the property to a private party, 
revealing that his true objection was not to the city's ownership of 
the display but to the cross itself--something he personally did not 
like.
  In 1992, 76 percent of the people of San Diego, CA, showed their 
support for keeping the cross at the Mount Soledad Veterans Memorial by 
voting to support ``Proposition F'' to authorize the city to transfer 
the property to a private nonprofit organization, so it would not 
implicate public matters. What is wrong with that?
  After Proposition F passed, the memorial association did successfully 
bid for the property. It chose to keep the cross up but also made $1 
million worth of significant improvements to the memorial, including 
the granite walls, plaques, pavers, flagpole, and American flag. Even 
after the improvements were completed, Mr. Paulson was still 
challenging the sale.
  In 2002, the Ninth Circuit Court of Appeals on the west coast--
considered the most activist circuit of all in the country and the most 
reversed by the U.S. Supreme Court--found that the method of the sale 
violated the ``no aid to religion clause'' of the California State 
constitution. They transferred it to a private, nonprofit, nonreligious 
organization, but they said this aided religion.
  I believe this is something on which we can all agree. I know the 
Senators from California, Senators Feinstein and Boxer, have indicated 
they believe this memorial should remain. I think we will be able to 
work through these difficulties and get this legislation passed.
  Mr. President, following up on the Mount Soledad Memorial legislation 
to deal with the court ruling that has imposed a $5,000 fine per day on 
the city of San Diego, a ruling stayed by Justice Kennedy on the U.S. 
Supreme Court, that ruling deals with the cross that was maintained by 
the Mt. Soledad Memorial Association on property originally owned by 
the city of San Diego. Some 35 years after it was placed there, someone 
objected, and the city sold the property to the memorial association, 
putting it in the hands of a nongovernmental, private entity.
  As a result of that action, a lawsuit was commenced anyway and still 
said it was improper, and the court reached a ruling that was sort of 
breathtaking and said they still couldn't do it. I would note that in 
1992, 76 percent of the people in San Diego voted to support keeping 
the cross there, and voted

[[Page S8365]]

in support of Proposition F to transfer the property to a private 
organization. But still they didn't stop, and we have continued to see 
the litigation go on and on. Some of it arises from the case law and 
the very strong constitutional provisions unique to California.
  In 2002, the Ninth Circuit had a ruling on it, and this is what they 
ruled: that the ``no aid to religion'' clause of the California 
Constitution prohibited California from transferring this property to a 
private association because any buyer who did not desire to keep the 
cross that was there would be required to pay for its removal, whereas 
an entity who wanted to buy and did not want to take the cross down 
would not have any expense; therefore, this aided religion. Now, that 
is the theory of it. I think that is not a sound analysis.
  The Ninth Circuit is the most activist circuit in the country and we 
continue to have problems with them. They are reversed by the U.S. 
Supreme Court more often than any other circuit. Some years they have 
been reversed more often than all of the other circuits combined. One 
year it was 26 out of 27 cases the Supreme Court considered, they 
reversed. So that is what causes this problem.
  A plan has been devised. Congressman Hunter, who represents San 
Diego, and Congressman Brian Bilbray, who represents the Mt. Soledad 
district, have worked hard to prepare legislation that would transfer 
it to the Federal Government, because this wouldn't be unconstitutional 
under Federal law. It passed in the House by an overwhelming vote of 
349 to 74. We want to see that pass here. It has been called up and 
cleared on the Republican side of the aisle, and it is now being 
objected to by some on the Democratic side. So I would ask my 
colleagues on the Democratic side to work through this thing and see if 
we can get it passed. It would allow the veterans to be able to 
continue to have the memorial on Federal property that has been in 
place for 54 years. It does not establish a religion. On Federal 
property, it is consistent with the wishes of those veterans and their 
families for over a half a century.
  I would note we have Democratic support for this concept. I notice 
that in one of the news articles from the Copley News Service here, 
Senator Barbara Boxer, a California Senator, and one of the other 
Democratic Members, said:

       [T]he monument is a historic memorial to our veterans and 
     should be allowed to stay.

  Senator Dianne Feinstein, the other Senator from California, has 
said:

       [B]ecause of the history and significance of this monument 
     to so many veterans and San Diegans, it should be preserved.

  So the Congressmen there, the people of San Diego, and the Senators 
from California are in favor of this. It is as a result of this complex 
history and the obsession by the courts, it appears, to just eliminate 
any reference, any expression of religion whatsoever from the public 
square, even if it is not consistent with the U.S. Constitution, in my 
view.
  I believe this legislation is important and should be passed. We can 
make this happen. I ask my colleagues to review it. I will plan to come 
back and deal with it some more if we cannot get it cleared. We need to 
have a vote on it, if it cannot be cleared voluntarily. I hope we can 
avoid that.
  Mr. President, I note there are other Senators here wishing to speak. 
We are on the drilling offshore bill in the gulf, and that is a very 
important piece of legislation.
  I, again, note I have asked this morning that this be cleared. We 
have another objection. We will continue to persist with this until we 
get everybody's attention and maybe they can review it and see fit to 
clear it. I think they will. If not, I will be asking the leader to 
invoke cloture on the legislation.
  I further add, Senator McCain has also offered legislation similar to 
mine. It would do the same thing. But the bill we are asking clearance 
on is the bill that came from the House, H.R. 5683.
  I yield the floor.

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