RICHMOND, Va. (CN) — Virginia’s highest court offered no hint Tuesday as to how it might rule on two cases aiming to keep Democratic Governor Ralph Northam from removing a 131-year-old statue of Confederate General Robert E. Lee from downtown Richmond.
The justices of the Virginia Supreme Court remained entirely silent, asking no questions and making no comments, during Tuesday's oral arguments in an appeal from landowners who live near the statue and Lee descendants who want to preserve a statue the state argues equates to racist speech.
The legal fight started in June of last year after the death of George Floyd inspired marches across Richmond. Some local stores were burned and looted during protests, but the demonstrations were largely peaceful.
Northam, who is still trying to rehabilitate his image following the reveal of a blackface photo from a college yearbook, says removing the Lee statue is a matter of public safety and would also serve as a rebuke to the state’s history as the capital of the Confederacy.
“This statue was erected with a backdrop of white supremacy and part of a propaganda campaign to obscure the true purpose of the Confederacy,” Virginia Attorney General Mark Herring, a Democrat, said ahead of Tuesday’s hearing. “It does not reflect who we are as a state and it needs to come down.”
Herring’s office was tasked with defending Northam’s removal order and has successfully done so as the disputes wound their way through state courts.
“This case is not about whether the people of 1890 have the power to put this statute up, or for people between then and today to leave it up,” Solicitor General Toby Heytens argued before the Virginia high court Tuesday morning. “It’s about whether a handful of individuals have the power to override the will of the Legislature, the governor and their neighbors to continue to maintain this statue indefinitely.”
Heytens argued in lower court hearings that the statue amounted to racist speech, promoting the Confederacy's Lost Cause narrative that aimed to maintain the subjugation of Black people after the fall of the South. He said a contract known as a restrictive covenant that requires the state to maintain the statue forces it to support that speech in violation of its First Amendment right to control what messages it supports.
“The government has to be neutral as to speech private parties are engaged in, but it can’t be forced to say things by private parties,” said Rich Schragger, the Perre Bowen Professor of Law at the University of Virginia School of Law.
Schragger signed on to an amicus brief filed by professors which specifically addressed the state's speech argument through the lens of the property law claim the landowners have made.
“Under basic principles of property law, governments get to dictate what they say,” he said in an interview. “And under public policy exceptions to original restrictive deed language, they’re entitled to change their minds.”
That public policy exception and other property law issues are key to the landowners' arguments.
Patrick M. McSweeney, a Richmond-area lawyer representing them, argued the change in public policy threshold wasn’t met, despite legislative action made to remove the statue. Instead, he argued that legislative effort to nix the 130-year-old restrictive covenant, enshrined into law until last year, and the Legislature’s use of a budget amendment amounts to a constitutional violation and should invalidate the public policy argument.
“The General Assembly's plenary power is obviously capped by specific provisions of the constitution, here the contract clause, as well as separation of powers,” he argued Tuesday. “It does not exercise the right and power to invalidate contracts in every exercise that would otherwise be a legitimate exercise of police or sovereign power.”
While the hearing was held virtually, only a few miles down the road from the court stands the Lee statue, proudly looking south on horseback and covered in a kaleidoscope of graffiti from protesters.
Helen Marie Taylor and a few other landowners hired McSweeney to keep the statue in place, but other area residents, like 36-year-Richmond resident Don Baker, want to see it removed.
“It should have come down a hundred years ago,” he said in an interview just a few feet from his house that looks out onto Lee. “It’s always been an eye sore, even before the graffiti."
Baker and other locals filed an amicus brief siding with the state, asking for the statue to be torn down.
“It’s a handful of people who are trying to maintain it and they don’t represent all of the people who live here,” he said.
Over on the east side of Lee sits a blue tent with baskets of food strewn about. It’s manned by Lawrence West, activist and founder of BLM RVA. His group formed in the wake of last year's massive Floyd protests and has maintained a presence near Lee ever since. They offer community services like court watching and crime diversion programs, as well as the small food pantry with funds raised by donations.
“The statues were markers for the ideals of white supremacy and white nationalism,” West said, suggesting Lee and other Confederate monuments, since removed by the city, acted as borders for redlining, which devalued Black-owned land as part of a systematic effort to keep people like him from succeeding.
“It was also about not allowing us to come into their space,” he said, noting the original name for his group was the Occupiers. They actually slept near or under the Lee monument for weeks until police pushed them out.
He said the statue, whose grass circle is state-owned public land, is being protected at the behest of the few rich neighbors who complained because of “that deep-seeded redlining belief that 'you don’t belong here.'”
As he spoke a Capitol Police vehicle rolled into view. West said either Capitol or Richmond police drive by every day, a small improvement from the encampment charges he and his group were charged with — and beat — as the city and state have worked to keep protesters away from the area.
Though West will be glad to see the Lee statue gone if the state’s high court allows it, he’s not offering support for Northam or Richmond Mayor Levar Stoney for their removal efforts.
“I think it was more of a reactionary situation,” he said of the Democratic leaders' use of safety complaints as grounds for removal of the monument.
He said the safety issue was raised because people like him were sick of what they saw as monuments to oppression casting shadows over their town.
“It had to be somebody,” he added. “But we was gonna do it.”
The Virginia Supreme Court justices did not signal when they intend to rule on the issue.
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