A judge heard hours of arguments and witness testimony Monday but did not immediately issue a ruling in a lawsuit seeking to prevent Virginia’s governor from removing an enormous statue of Confederate Gen. Robert E. Lee in Richmond.
“It’s a very difficult case. It’s a difficult case for our city, it’s a difficult case for the nation,” Richmond Circuit Court Judge W. Reilly Marchant said.
Saying he recognized the history and the strong emotions the case involves, Marchant told the attorneys he had “plenty to consider,” and would issue a written ruling likely within seven to 10 days. He said he would not let an existing injunction prohibiting the statue’s removal expire before reaching a final decision.
The plaintiffs, a group of Richmond residents who live near the monument in this former capital of the Confederacy, filed suit after Democratic Gov. Ralph Northam announced plans to remove the statue in June amid the outcry and unrest caused by the death of George Floyd in police custody.
The plaintiffs argue that taking down the bronze equestrian figure installed in 1890 would violate the state constitution, an 1889 act of the General Assembly and restrictive covenants in deeds that transferred the statue, its soaring pedestal and the land they sit on to the state.
“The overriding issue is whether the governor has the authority to order the removal of the Lee Monument,” Patrick McSweeney, one of their attorneys, said Monday.
The state has argued it cannot be forced to forever maintain a statue it says no longer comports with its values.
“I just need to emphasize one more time the extraordinary nature of the claim the plaintiffs are making here,” Solicitor General Toby Heytens said in court. “They are claiming that private parties can enlist the power of the courts to force a sovereign state to continue to broadcast a message that the leadership of that sovereign state no longer wishes to do.”
Heytens asked the judge to strike all the remaining counts in the plaintiffs' lawsuit and dissolve the injunction.
The plaintiffs are seeking, in part, a permanent injunction preventing the defendants from removing the statue.
Marchant heard hours of wide-ranging witness testimony about the statue, its history and perspectives on its meaning.
Among the witnesses was nationally recognized historian Edward Ayers, a former president of the University of Richmond, who was called by the state. Ayers, who faced a lengthy cross-examination from McSweeney, discussed the central role of slavery in the Civil War, the post-war debate over how best to commemorate those who had died and the development of Monument Avenue. He said he thought the Lee statue was the largest Confederate monument ever built.
No matter Marchant’s eventual decision, it’s possible the case could take even more time to unwind. The case is widely expected to be appealed to the Supreme Court of Virginia, and an injunction could remain in place while that plays out.
Monument Avenue, a prestigious residential boulevard that once contained one of the nation’s most prominent collections of Confederate statues, was dramatically transformed over the summer. The avenue’s other large Confederate statues, all located on city property, were either toppled by protesters (in the case of Jefferson Davis ) or hauled away by contractors working for the city. Amid weeks of nightly protests, Mayor Levar Stoney ordered the statues removed, invoking his authority under a local emergency order.
The Lee statue, meanwhile, was transformed into a bustling hub of activity for demonstrators protesting against police brutality and racism. The giant concrete pedestal of the statue is covered by colorful and constantly changing graffiti, many of the messages profanely denouncing police and others demanding an end to systemic racism and inequality.
A recent piece in The New York Times Style Magazine included the statue in its current state among a list of 25 of the “most influential works of American protest art since World War II.”
The 21-foot-high (6.4-meter-high) statue, which the state has said weighs about 12 tons (11 metric tons), sits atop a pedestal nearly twice that tall. Northam’s spokeswoman said Friday that a decision has not yet been made about what will be done with the pedestal.