Virginia high court hears challenges to Lee statue removal

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EDS NOTE: OBSCENITY - FILE - In this Friday, July 10, 2020, file photo is the statue of Confederate General Robert E. Lee Monument Avenue in Richmond, Va. The Supreme Court of Virginia is set to hear arguments Tuesday, June 8, 2021, in legal challenges to Virginia Gov. Ralph Northam's plan to take down the 131-year-old statue of Confederate Gen. Robert E. Lee. (AP Photo/Steve Helber, File)

RICHMOND, Va. – A 131-year-old statue of Confederate Gen. Robert E. Lee took center stage Tuesday as the Supreme Court of Virginia heard arguments on whether the state has the right to take down the once-celebrated monument that is now widely seen as a symbol of white supremacy and Black oppression.

The court heard arguments in two lawsuits that challenge Gov. Ralph Northam’s plan to remove the enormous bronze equestrian statue of Lee from a traffic circle on Richmond's Monument Avenue.

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It's unclear when the judges will issue their ruling. The court generally averages about six to nine weeks to render decisions after oral arguments, but there are wide variations among cases. During Tuesday’s virtual hearing, the justices did not ask a single question of the state’s lawyer or the attorneys representing the plaintiffs in the lawsuits. Although the court had allotted a total of 70 minutes for arguments in the two cases, the actual arguments took just over 30 minutes.

The hearing came a day after the city council in Charlottesville, Virginia, voted to remove two statues of Confederate generals from downtown parks, including one of Lee that was the focus of a violent white nationalist rally in 2017.

Northam announced his decision to remove the Richmond statue in June 2020, 10 days after George Floyd’s death under the knee of a Minneapolis police officer sparked protests over police brutality and racism in cities around the country, including Richmond. The nationally recognized statue became the epicenter of a protest movement in Virginia after Floyd’s death and is now covered with anti-racist and anti-police graffiti.

The central issue to be decided by the Supreme Court is whether the state is legally bound by a decision made by state officials who accepted ownership of the statue in 1889 and agreed to “affectionately protect” it as a monument to Lee.

Attorney General Mark Herring has asked the court to uphold a lower court’s rulings in favor of the governor. Herring argues that leaving the massive monument in place will continue to cause pain to many people who want to see it removed.

Virginia Solicitor General Toby Heytens argued Tuesday that the 19th century agreement was nullified last year when the General Assembly repealed the 1889 act and directed the state Department of General Services to remove the 13-ton (11.8-metric ton) sculpture. The state also argues that the private citizens who filed the lawsuits to try to prevent the statue's removal cannot force the state to maintain a monument that no longer reflects its values or current public policy.

”This case is about whether a handful of private individuals possess the judicially enforceable right to override a decision of the commonwealth’s political branches and the will of many of their own neighbors to force the commonwealth of today and tomorrow to continue to maintain this statue indefinitely," Heytens said.

Heytens said the plaintiffs have not been able to cite any decision in which a court has recognized “that sort of extraordinary private right against the sovereign itself.”

Two separate lawsuits were filed: One by a group of five Richmond residents who own property near the statue and the other by William Gregory, a descendant of signatories to the 1890 deed that transferred the statue, pedestal and land they sit on to the state.

In his lawsuit, Gregory argues that the state agreed to “faithfully guard” and “affectionately protect” the statue. In their lawsuit, the property owners argue that an 1889 joint resolution of the Virginia General Assembly accepting the statue and agreeing to maintain it as a monument to Lee is binding on the governor.

Patrick McSweeney, a lawyer representing the property owners, said the General Assembly's budget bill last year, which repealed the 1889 act, was unconstitutional and cannot override covenants requiring the state to protect and maintain the statue.

“Ultimately, the restrictive covenants that we rely on are and were valid and enforceable,” McSweeney said. “What we’re talking about in this case is whether public policy had been changed and it can only change by legitimate action, constitutional action of the General Assembly."

Gregory's lawyer, Joseph Blackburn Jr., said that his client, an heir to the land donors, retains the right to enforce covenants in the deed that prohibit removal of the statue, despite the General Assembly's actions last year.

“I can’t imagine in our country that the sovereign can take away property rights by just passing a law," Blackburn said.

A lower court judge sided with the governor in both cases, finding that the 19th century deed would violate “current public policy.”

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