RICHMOND, Va. (CN) — A state judge sided with Virginia’s governor Tuesday in a case challenging his authority to remove a 120-year-old monument of Confederate General Robert E. Lee from the capital city, but the statue will stay in place while the appeals process plays out.
Virginia Governor Ralph Northam has tried to remove the massive bronze figure since mid-June after Black Lives Matter protests took over Richmond streets, including the area around the state-owned monument.
Northam, a Democrat, argued removal was needed to protect the citizenry and the statue itself, but William Gregory — a descendant of deed signatories who gifted the monument to the state over 130 years ago — won an injunction blocking the effort.
While Gregory was eventually dismissed from the suit, other local landowners, including Helen Marie Taylor, signed on as plaintiffs, keeping the case alive.
But in an opinion issued Tuesday afternoon, Richmond City Circuit Court Judge W. Reilly Marchant found the 130-year-old restrictive covenant which deeded the statue and the land underneath it to Virginia is no longer valid due to changes in public policy.
Marchant cited U.S. Supreme Court precedent which found that racially motivated restrictive covenants, similar to contracts, are not valid under the 14th Amendment. He 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.
“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,” Marchant wrote. “It was out of this backdrop that the erection of the Lee monument took place.”
But Marchant also gave deference to the legislature which, during a recent coronavirus special session, used budgetary amendments to change an 1889 law that further burdened the state with Lee’s statue. The new language removed a section granting the monument as a gift and replaced it with a grant of authority to the state’s Department of General Services to specifically remove the statue.
“As the sole author of public policy… these acts of the General Assembly clearly indicate the current public policy of the General Assembly and therefore the commonwealth,” Marchant wrote.
While the order is a win for Northam, Marchant suspended any further action by the governor – including removing the statue – until the expected appeal is resolved.
Rich Schragger, the Perre Bowen Professor at the University of Virginia School of Law, said the inclusion of both arguments for public policy reasons is important, but the deference given to the legislature is what will help the state if and when the decision is appealed to the Supreme Court of Virginia.
“There’s certainly a clearer statement of the legislature’s view on what is and is not consistent with public policy,” Schragger said in a phone interview. “[The Supreme Court of Virginia] doesn’t have to make a grand statement about Lee’s status or the racial implication of these statues.”
“All [the higher court has] to say is the ‘legislature stated this was contrary to public policy and that’s all we need,’” he added.
The likely appeal will be the second time Virginia’s top court has weighed in on the removal of Confederate statues since Richmond began tearing them down this summer.
Richmond Mayor Levar Stoney took down statues to Jebb Stewart, Stonewall Jackson and other Confederate figures shortly after a law banning removal of war monuments was rolled back by the state’s recently elected Democratic majority. Governor Northam had signaled his support for removal efforts for years, but the formerly GOP-controlled Virginia House of Delegates refused to advance any of those efforts.
After citizens tried to block Stoney’s removal efforts, the Virginia Supreme Court found they lacked standing to sue, a technical but resounding win on an issue that could also weigh in Northam’s favor.
“It would suggest the court doesn’t want to get involved in the removals,” Schreggar said. “If the court wanted to be resistant to these removals they have some tools to do it, but this would be the hardest case.”
“The state has explicitly passed a law to take it down,” he added.
Patrick Sweeny, the lawyer who represented Taylor and other landowners in the dispute, declined to comment on the ruling in a brief phone call but promised on behalf of his clients that an appeal would be coming.
Virginia Attorney General Mark Herring, meanwhile, praised Marchant’s decision as a win against the state’s racist past.
“The Lee statue does not represent who we have become as Virginians and it sends the wrong message to the rest of the world,” the Democrat said in a statement Tuesday afternoon. “This decision puts Virginia one step closer on the path to finally bringing this divisive symbol down and I remain as dedicated as ever to ensuring that it is removed once and for all.”