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Virginia high court clears way for removal of state-owned Confederate statue

After a court battle that lasted a year and a half, a new pair of rulings allows Virginia’s Democratic governor to remove a 131-year-old Confederate statue in Richmond.

RICHMOND, Va. (CN) — A 131-year-old statue of Confederate General Robert E. Lee can now be removed by Virginia Governor Ralph Northam following a pair of orders issued by the state’s highest court Thursday morning. 

The first opinion came in a case brought by local landowners, led by Helen Marie Taylor, who said language in a joint resolution passed by state lawmakers in 1889 barred removal of the statute. But the Virginia Supreme Court held that honoring the bill’s language would limit the government’s free speech rights. 

“The General Assembly of 1889 had no authority to perpetually bind future administrations’ exercise of government speech through the simple expedient of a joint resolution,” Justice S. Bernard Goodwyn wrote in a 26-page opinion.  

“The commonwealth has the power to cease from engaging in a form of government speech when the message conveyed by the expression changes into a message that the commonwealth does not support, even if some members of the citizenry disagree because, ultimately, the check on the commonwealth’s government speech must be the electoral process, not the contrary beliefs of a portion of the citizenry, or of a nineteenth-century governor and legislature,” he added.

Goodwyn pointed to numerous societal changes and legal precedent that show the state’s history of post-Civil War racism is no longer the view of current elected officials.

“The government’s right to free speech is an essential power inherent in all governments,” the ruling states.

The second ruling found that Richmond City Circuit Judge W. Reilly Marchant was correct in finding William C. Gregory, an alleged heir to the deed which gifted the Lee statue and land to the state, did not have standing to bring his property rights claims. 

“The facts in the record do not support a finding that Gregory has any ownership interest in any land,” according to the court's unsigned, four-page opinion. “Thus, Gregory has no property right, related to the Lee monument, to enforce against the commonwealth.”

The two orders bring an end to a fight started in spring 2020 after the death of George Floyd at the hands of Minneapolis police officers, which spurred nationwide marches against police brutality, including in Richmond where the streets were flooded with protesters. 

While the city removed about a dozen Civil War statues shortly after the protests began, Lee's is located on state-owned land which put it under the purview of Northam, a Democrat. After the Virginia Legislature allotted money for removal of the statue during an emergency legislative session held shortly after the protests, Gregory and a handful of local landowners sought to block its removal. 

But state's high court found the lower court was correct in finding the 130-year-old restrictive covenant which deeded the statue and the land underneath it to Virginia is no longer valid due to public policy changes.

In his October 2020 ruling, Marchant pointed to evidence presented by the state – including testimony from history experts who spoke of the legacy of monuments like Lee’s and efforts by white southern leadership to elevate the Confederacy in the wake of its defeat – as grounds for the deed violating the 14th Amendment’s equal protection clause. 

"Their testimony described a post-war South where the white citizenry wanted to impose and state unapologetically their continued belief in the validity and honor of their ‘Lost Cause,’ and thereby vindicate their way of life and their former Confederacy,”  the Richmond judge wrote. “It was out of this backdrop that the erection of the Lee monument took place.”

Virginia Attorney General Mark Herring, whose office argued on behalf of Northam, praised the high court’s ruling Thursday. 

“The monuments we raise and the symbols we include in our communities create a certain narrative, but up until now that narrative has been one-sided – and it’s time to tell our full story,” Herring, a Democrat currently running for reelection, said in a statement following the release of the orders.

In a brief phone call, Patrick M. McSweeney, the Richmond-area lawyer who represented the plaintiffs trying to block the statue's removal, said he was still reviewing the opinion with his clients and would issue a statement at a later time.

But Richard Schragger, the Perre Bowen Professor of Law at University of Virginia's School of Law, said there are few options for the plaintiffs. While he opined they could try and argue a constitutional takings claim and take the case all the way to the U.S. Supreme Court, they would have to start back in the lower state courts, which may use Thursday's opinions as grounds to deny the claims from the outset.

"The court's strong assertion that the plaintiffs' theory, that they could perpetually bind the government to engaging in a certain kinds of speech, is contrary to public policy," Schragger, who co-signed an amicus brief supporting Northam's free speech arguments, said in a phone call. "That's an important part the court stresses over and over again."

The removal of the Lee monument and Confederate statutes across the state comes in the wake of Democrats taking control of both legislative chambers and the governor's office for the first time in decades in 2019. Among those who have long fought for these changes is Louise Lucas, the longest serving member of the state Senate, who took to Twitter to thank Herring for his work.

"For far too long, the Lee statue stood tall in our capital and represented nothing but division and white supremacy - but it is finally coming down," the Portsmouth Democrat tweeted.

Northam similarly hailed Herring and the high court's ruling, calling it a tremendous ruling for the people of Virginia.

"Our public memorials are symbols of who we are and what we value," the governor said in statement. "When we honor leaders who fought to preserve a system that enslaved human beings, we are honoring a lost cause that has burdened Virginia for too many years."

Northam also said the removal of the 12-ton statue from downtown Richmond would be a multi-day effort, with no action expected this week.

Follow Brad Kutner on Twitter

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