A new Virginia law going into effect on Wednesday may serve as the catalyst to settle a battle over iconic two Robert E. Lee statues that have made national headlines.
One memorial sits in Charlottesville’s Market Street Park (formerly known as Lee Park). The other resides on Richmond’s Monument Avenue. Both statues have been the sites of protests in recent times.
In August 2017, protests in Charlottesville about the removal of its Lee statue left one person dead. Two police officers also died in a helicopter crash responding to the protests. The fight over the city’s desire to hide or remove the statue has been contested in Virginia’s state court system since 2017.
And in Richmond, city leaders want to remove its Lee statue, the scene of recent Black Lives Matter protests. Richmond was also the Confederacy capital during the Civil War. Its Monument Avenue had five Confederate memorials at one time. The city controls the three other current statues and also wants to remove them from public spaces.
Until recently, Virginia state law prohibited the removal of war memorials, including memorials to what was called “the War Between the States” in the state code.
“It shall be unlawful for the authorities of the locality, or any other person or persons, to disturb or interfere with any monuments or memorials so erected, or to prevent its citizens from taking proper measures and exercising proper means for the protection, preservation and care of same,” read the 1950 law.
However, state lawmakers in April 2020 passed Senate Bill 183 and House Bill 1537, which go into effect on July 1, 2020, and permit a local government to remove a “monument or memorial for war veterans” on public property (excluding cemeteries), “regardless of when the monument or memorial was erected.” Any removal is subject to a 60-day hearing and removal process that allows a monument to be relocated. (The bill also eliminated the use of the words “War Between the States” in the amended law, replacing them with “Civil War.”)
On June 9, all nine Richmond council members supported removing the Confederate statues on Monument Avenue, including the Lee statue. But that effort could be put on hold because of a lawsuit involving an heir to the family that donated the Lee statue to the state in 1890.
Virginia circuit court Judge Bradley B. Cavedo has issued an injunction preventing Governor Ralph Northam from removing the Lee statue in Richmond. Plaintiff William C. Gregory asked Judge Cavedo to issue the injunction after Northam asked for the monument’s removal on June 4, citing his own powers as governor. On June 18, Cavedo ruled against Gregory for lack of standing, but he left the injunction in place, giving Gregory’s attorneys a chance to amend his complaint.
Gregory’s great-grandparents gifted the monument—including the statue and the land where the Lee statue resides—to the state of Virginia. Gregory claims the state’s removal of the statue would violate the gift’s terms, specifically requirements that the state accept the statue on the conditions that it “faithfully guard it and affectionately protect it.”
Virginia Attorney General Mark Herring argued in his brief that the statue’s presence on state-owned land is subject to government speech under the First Amendment. He also referenced a 2009 unanimous Supreme Court decision, Pleasant Grove City v. Summum, in the brief’s first sentence.
“Under our democratic system, no one—neither long-dead private grantors nor previous government officials—may obligate a sovereign Commonwealth to continue broadcasting a message with which it profoundly disagrees or to forever display and maintain on its own property a massive statue of a person symbolic of a time it no longer wishes to glorify,” Herring wrote.
Judge Cavedo told both sides he would reconvene proceedings on July 23 in the case. “Well, the state seems to think that the monument is the property of the governor,” Cavedo said in a transcript reported by the Richmond Times-Express. “My view is that the monument is the property of the people of the commonwealth and that the governor is more of a custodian or fiduciary on their behalf.” The Judge also said that “until someone proves otherwise to me, [Gregory] is a part owner of the monument.”
In separate proceedings in Charlottesville, the city wants the state’s Supreme Court to take up the matter of the new state law allowing it to remove its Lee monument.
Charlottesville Circuit Court Judge Richard Moore issued the first injunction in the lawsuit over the Charlottesville statue in October 2017 that kept the monument in place, along with a Stonewall Jackson statue. City officials had voted in February 2017 for the statue’s removal.
A lawsuit filed in Payne v. Charlottesville by local residents, the Virginia Division of the Sons of Confederate Veterans, Inc. and the Monument Fund, Inc. claimed that the Lee statue was a war memorial for veterans and protected by state law. Judge Moore decided in April 2019 the statues were war memorials protected under the state law and the injunction became permanent in October 2019.
And like the Lee monument in Richmond, the Lee and Jackson statues and the land they sit on had been given to the city of Charlottesville as a gift from a private party.
However, on June 26, 2020, the city asked the Virginia state Supreme Court to remove the Virginia circuit court from the Payne case by ignoring a partial dissolution of the injunction requested by the circuit court.
“The City plans to file a motion with the Virginia Supreme Court asking it to completely dissolve the injunction. The partial dissolution, recently requested by the Payne v. Charlottesville case from the Charlottesville Circuit Court, seeks to extend the Circuit Court’s involvement rather than to allow the City to make discretionary decisions under the new [state] law,” the city said in a press release.
In both cases, it seems likely the Virginia state Supreme Court will need to act in some capacity. In the Charlottesville case, the circuit court’s injunction and involvement in the matter are at hand. In the Richmond case, the court would need to consider the argument that the city, and not the state, could violate the wishes of the statue’s original donors by removing it from its current location. There is also a second lawsuit in Richmond from six Monument Avenue residents claiming they would be harmed if the area loses its National Historic Landmark status, and the tax benefits that come with the designation.
The fight over the Robert E. Lee statues is far from over, and it should get more national attention as the matters move closer to a final resolution in July. Virginia has more than 100 Confederate memorials within the state.
Scott Bomboy is the editor in chief of the National Constitution Center.