Judge greenlights removal of Confederate monument from Arlington National Cemetery

ALEXANDRIA, Va. (CN) — U.S. District Judge Rossie D. Alston Jr. Tuesday rejected a motion by Southern heritage groups that sought to keep a controversial Confederate memorial at Arlington National Cemetery.

Alston's ruling clears the way for the U.S. Department of Defense to remove the memorial, described by the Arlington National Cemetery as offering “a nostalgic, mythologized vision of the Confederacy, including highly sanitized depictions of slavery.”

The judge wrote that the case "attempts to place this court at the center of a great debate between individuals extolling the virtues, romanticism and history of the Old South and equally passionate individuals, with government endorsement, who believe that art accentuating what they believe is a harsh depiction of a time when a certain race of people were enslaved and treated like property is not deserving of a memorial at a place of refuge, honor and national recognition." The judge added that he was not going to resolve that issue but would simply decide on case law.

Led by Defend Arlington and Save Southern Heritage Florida, the lawsuit aimed to prevent the defense department from removing the Confederate memorial from the revered cemetery. The plaintiffs were granted a temporary injunction Monday that stopped removal. The groups contended that workers would "desecrate, damage and likely destroy the memorial longstanding at Arlington National Cemetery as a grave marker."

Lunelle Siegel, an associate of Defend Arlington, watched workers as they began to take down the memorial during the weekend and filed a court declaration stating, “one of the four grave markers, located close to the base of the memorial has been removed and there is a crane sitting on top of the gravesite.”

Concerned, Alston decided to see for himself and visited Arlington.

"I'm looking for anything that suggests the graves have been desecrated," he said from the bench Tuesday. "I saw nothing."

Karen C. Bennett, representing Defend Arlington, argued that it was "in the public interest" to maintain the memorial, but the judge countered that some of the illustrations on the memorial could be "difficult and hurtful to other people."

The memorial includes a female figure representing the American South on a 32-foot-pedastal. Two other figures portrayed are African American: “an enslaved woman depicted as a ‘Mammy,’ holding the infant child of a white officer, and an enslaved man following his owner to war,” the cemetery's website explains.

During his visit, the judge examined the memorial, which is referred to by Defend Arlington as a reconciliation memorial.

"I looked very closely," Alston said, adding that he saw "no reference whatsoever to reconciliation."

Attorneys for Defend Arlington also argued that they were challenging the procedural process — specifically, that the Army, which oversees Arlington, violated the National Environmental Policy Act and its own regulations by avoiding the need to consider significant impacts on historic resources. Alston was unconvinced and agreed with attorneys for the government, who characterized the lawsuit as forum shopping. Defend Arlington launched the suit in Virginia after failing to convince a U.S. District Court judge in Washington, D.C.

"The removal of the memorial and whether that decision is subject to NEPA was squarely at issue in the District of Columbia Litigation," Alston noted. 

He took issue with other aspects of the lawsuit as well.  Defend Arlington, along with other groups in the lawsuit, are depicted in legal filings as diverse and "dedicated to the preservation of Southern-American heritage and Confederate and Jewish veterans."

But in his order, Alston noted that plaintiffs included "distant descendants of Moses Ezekial," who designed the memorial and is buried below it. But the complaint "does not include the degree of consanguinity of those relationships," the judge pointed out. In a footnote, he explained: "In an affidavit filed in another related case, plaintiff Paul Robert Ezekial attested that he is 'the second cousin three times removed' of Moses Ezekial.

The removal of Confederate statues, along with the renaming of forts that previously honored Confederate military and political figures, came about in the wake of national protests against the unequal treatment and murder of African Americans by police.

Congress required the Department of Defense to complete the removal of the memorial by Jan. 1, 2024, according to court filings by attorneys representing the government.

To get the job done, the Army hired a specialized contractor to perform the complicated removal and preservation process. Removal is expected to take approximately four days.

The Washington Post reported in September that Virginia Gov. Glenn Youngkin asked the Virginia Military Institute to accept the statue on property it owns after its removal from Arlington.

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