The Virginia Supreme Court heard challenges Tuesday morning to the state’s plan to remove the statue of Robert E. Lee from Monument Avenue. A group of property owners and a descendent of the family that donated the statue sued the state to keep the monument standing. Both appealed to the high court after a Richmond Circuit Court judge ruled in October that the state has the authority to take it down.
Gov. Ralph Northam directed the Department of General Services to remove the monument this time last year, 10 days after a Minneapolis Police officer murdered George Floyd.
Northam and others cite the racist history of Confederate monuments, many of which were erected as Jim Crow laws disenfranchised Black voters. Under Jim Crow, white lawmakers passed laws to prevent their future removal.
Northam said the statues are symbols of deeper problems and removing them is a necessary first step toward ending systemic racism.
In Taylor, et al. v. Northam, et al., property owners argue the governor does not have the authority to remove the statue and that a Jim Crow-era state law expressly banned its removal. During a special legislative session last summer, lawmakers amended the state budget to pay for the statue’s removal and rescinded that law.
They also cite the restrictive covenants in an 19th century deed as reasons why it is illegal to remove the statue. The state agreed in the deed to “faithfully guard” and “affectionately protect” the statue.
The other lawsuit, Gregory v. Northam, et al. was filed by a descendant of signatories to the deed.
Richmond Circuit Court Judge W. Reilly Marchant, when siding with the governor in October, found that arguments for leaving the statue standing are contrary to current public policy.
In April, more than 50 residents who live near the monument filed court briefs supporting the statue’s removal. The group, called Circle Neighbors, said the statue celebrates values that contradict those of the neighborhood and community, conveys a false and harmful historical narrative and threatens public safety.
Protesters toppled other Confederate monuments and vandalized Confederate symbols during racial justice and police brutality demonstrations last summer. They also transformed the Lee monument into a gathering place, and cloaked the pedestal and statue in graffiti. While the New York Times recognized those contributions when they named the transformed statue the most influential work of protest art since World War II, the state has since erected a fence around the property.
Supreme Court Justices did not comment or ask questions during Tuesday’s hearing, which University of Richmond Law Professor Carl Tobias said could reflect how well the arguments were written in the briefs and how straightforward the arguments are.
“It also may reflect that it's just, for some people, so controversial that they don’t want to have an argument about it,” Tobias said. “What struck me is how quickly it was over.”
The attorneys for both sides also did not elaborate on their arguments outside of what they had already presented to the court in written briefs.
“Ultimately, the restrictive covenants that we rely on are and were valid and enforceable,” said Patrick McSweeney, the attorney for the property owners in the Taylor case.
The attorney in the Gregory case, Joseph E. Blackburn maintained the property rights of his client, William Gregory, should be upheld.
“I can't imagine, in our country, that the sovereign can take away property rights by just passing a law,” Blackburn said.
Solicitor General Toby Heytens responded that regardless of whether plaintiffs had any enforceable property rights, those rights were extinguished by the law and budget amendment legislators passed in 2020.
“This case is about whether a handful of private individuals possess a judicially enforceable right to override the 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.
Tobias said it could take 6-9 weeks before the Supreme Court issues an opinion.
