April 19, 2021- Herring Continues Fight in Virginia Supreme Court to Finally Remove Lee Statue

~ Herring files brief asking SCOVA to dissolve injunction and allow the Commonwealth to remove the Lee statue; several amicus briefs are also expected to be submitted in support of Herring’s efforts to remove statue ~

RICHMOND (April 19, 2021) – Attorney General Mark R. Herring has filed a brief asking the Supreme Court of Virginia to uphold the Richmond Circuit Court’s ruling that removal of the divisive Robert E. Lee statue is lawful and to dissolve the injunction that is currently preventing the Commonwealth from taking down the state-owned statue on Monument Avenue in Richmond. Attorney General Herring’s brief makes the case not just for why the statue can be taken down, but why it should be taken down, recounting the statue’s prominent role in perpetuating Lost Cause propaganda and promoting racially segregated neighborhoods in Richmond.

“The Lee statue has held a place of prominence in the capital of Virginia, sending a message of white supremacy and division, for far too long and it is time for it to come down” said Attorney General Herring. “The continued obstruction that has so far prohibited the Commonwealth from exercising its right to remove state-owned property must stop. I remain committed to ensuring that this stark reminder of a racist past comes down, allowing Virginia to move forward on its journey of healing and reconciliation.”

Additionally, a number of Virginians, advocacy groups, and legal scholars are expected to submit nine amicus briefs today in support of Attorney General Herring’s efforts to remove the statue.

On October 27, 2020, Richmond Circuit Court Judge W. Reilly Marchant ruled in favor of Attorney General Herring and Governor Northam in finding that the Lee statue’s removal was lawful. In January 2021, Attorney General Herring asked the Supreme Court of Virginia to reject this appeal that seeks to keep the state-owned Robert E. Lee statue on Monument Avenue. He also asked SCOVA, if they chose to hear the appeal, to do so as quickly as possible.

Below are some notable passages from Attorney General Herring’s brief:

“In 1890, the then-Governor of Virginia accepted a statue from a nominally private organization of which that same Governor was also, simultaneously, the president. More than 130 years later, a different Governor decided that the statue—a piece of Commonwealth-owned property—should be relocated from one area of Commonwealth ownership and control to another. The General Assembly has agreed. That should be the end of the matter.” [page 1]

“In these two cases, however, a handful of private individuals claim a judicially enforceable right to veto the shared decision of the political branches. As plaintiffs see it, the people of 2021 may not take down a divisive symbol that those who held power in 1890 decided to put up.” [page 1]

“That cannot possibly be right. It is axiomatic that government officials are neither obligated to continue the policies of their predecessors nor capable of preventing their successors from making a different choice. And because even Constitutions may be amended as times change or circumstances warrant, it is clear that the claim plaintiffs assert is alien both to the law and the ability of future generations to create ‘a more perfect Union.’” [page 1]

“The end of the Civil War and the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments initially brought hope that the newly freed would enjoy the full benefits of citizenship and that the horrors of slavery would be consigned to the dustbin of history…But that promise proved elusive, as efforts soon began to curtail Black political power and bring forth a new era where the basic structures of slavery would persist in practice, if not in name.” [page 2]

“As part of that effort, various commentators embarked on a deliberate campaign to recast the object of Southern secession away from the actual reason secessionists had given at the time: the preservation of slavery. ‘The whole point of” this quickly developing ‘Lost Cause’ mythology was ‘to clothe everything in a language of home, of sacrifice, of loss, of valor, of glory, of religion; everything except the explicit thing that precipitated the severing of the United States.’” [page 3]

“On May 29, 1890, the Lee Monument was unveiled in a ceremony attended by as many as 150,000 people…The event was a both ‘display of . . . uncompromised devotion to the Confederacy’ and ‘a demonstration of the solidarity and power of white people’ in the South.” [page 5]

“Even in 1890, not everyone in Richmond felt pride in the unveiling of the Lee Monument. A Black-owned newspaper edited by prominent businessman and politician John Mitchell, Jr., for example, criticized the spectacle as ‘handing down . . . a legacy of treason and blood.’…Mitchell’s paper noted that many of those who attended carried ‘emblems of the ‘Lost Cause’’ with an ‘enthusiasm’ that was ‘astound[ing].’…By ‘rever[ing] the memory of its chieftains’ in this way, the paper argued, the ‘celebration . . . forge[d] heavier chains with which to be bound.’” [page 6]

“In 1902—12 years after the Lee Monument was unveiled and just one year after the first house was completed on Monument Avenue—Virginia’s new Constitution mandated racial segregation in schools and disenfranchised Black voters…In 1911, Richmond adopted a residential segregation ordinance—later upheld by this Court—restricting Black residents to certain city blocks…Real estate companies drew on Monument Avenue’s symbolism to attract affluent white residents as the city expanded, advertising race-based restrictions under which ‘[n]o lots [could] ever be sold or rented . . . to any person of African descent.’…These efforts made ‘explicit’ that ‘th[e] purpose was to claim this part of the city as for white people only.’” [page 6-7]

“In no uncertain terms, the inequality enshrined in law continued the legacy of the Lee Monument and others built to valorize Lee and the Lost Cause. The race-based violence inherent in slavery also persisted after the defeat of the Confederacy, as the Jim Crow era was marked by ‘racial terror and lynchings’ throughout the South.” [page 7]

“During the last several years, Richmond’s Lee Monument and other Confederate monuments have become ever-greater hotbeds for controversy. In August 2017, ‘white supremacist extremist organizations’ descended on Charlottesville for the ‘Unite the Right’ rally—a now-infamous demonstration opposing the City’s decision to remove a different Lee statue—as both ‘a show of force’ and an attempt to ‘lay[] exclusive claim . . . to public space [and] to the streets of Charlottesville.’…The demonstration turned violent, with ‘armed men menacing peaceful protestors’ and ‘a contingent of faith leaders’ threatened with ‘physical harm.’…Three people died, dozens were injured, and countless more were traumatized.” [page 8]

“In response to the events in Charlottesville and elsewhere, the General Assembly amended the Code of Virginia during its 2020 session to give localities more control over government-owned monuments on government-owned property, specifically repealing previous language that had prohibited ‘disturb[ing] or interfer[ing]’ with certain monuments…During the same session, the General Assembly also eliminated a state holiday ‘honor[ing] Robert Edward Lee,’…and created a Commission for Historical Statues to determine whether to replace a different statue of Lee that was then one of Virginia’s two submissions in Statuary Hall in the United States Capitol. [page 8-9]

“The killing of George Floyd on May 25, 2020, sparked massive protests against police brutality and systemic racism throughout the Nation, including in Virginia…On June 4, 2020—10 days later—Governor Northam announced that he would exercise his authority as the Commonwealth’s chief executive to relocate ‘the statue of Robert E. Lee’ that sits atop the Lee Monument from one area of Commonwealth control to another.” [page 9]

“The General Assembly has also addressed the Lee Monument. On November 18, 2020, the Governor signed a bill stating ‘the Department of General Services, in accordance with the direction and instruction of the Governor, shall remove and store the Robert E. Lee Monument or any part thereof.’…The law also states that this instruction applies ‘[n]othwithstanding the provisions of” the 1889 Joint Resolution, ‘which is hereby repealed.’” [page 10]

“…the [Richmond Circuit Court]…found that the Commonwealth had ‘overwhelmingly established’ the desire of white Southerners ‘to establish a monument to their ‘Lost Cause,’ and to some degree their whole way of life, including slavery,’ and that ‘[i]t was out of this backdrop that the erection of the Lee Monument took place’…the court specifically noted Dr. Gaines’ testimony ‘that today the monument stands as a contradiction to present societal values.’” [page 15-16]

“The Governor has determined that a Commonwealth-owned statue should be relocated from one area of Commonwealth ownership and control to another. The General Assembly has agreed. That should be the end of the matter.” [page 16]

“…the assertion at the heart of these cases is staggering. Plaintiffs insist that those who held power in Virginia more than 130 years ago made a binding promise that a massive monument to the Lost Cause must remain in its current location forever and that any number of people may enforce that promise in perpetuity by way of an injunction. Plaintiffs identify no decision from any court that has ever recognized such an extraordinary restriction against any property owner—much less against the sovereign. And with good reason: plaintiffs’ arguments are deeply flawed and profoundly anti-democratic.” [page 16-17]

“In these cases, a handful of private individuals assert a right to veto the shared judgment of the Governor and the General Assembly that a divisive piece of Commonwealth-owned statuary should be removed from a place of honor on Commonwealth-owned real property. The circuit court correctly rejected that proposition, and this Court should affirm for one of two independent reasons. First, the 2020 Law defeats all of plaintiffs’ claims, and the Taylor plaintiffs’ various challenges to the validity or effect of that law all fail…Second, plaintiffs’ claims always lacked merit and would have failed even absent the 2020 Law…Accordingly, the Court should affirm the decisions of the circuit court and promptly dissolve the injunction pending appeal in Taylor.” [page 21]

“All of plaintiffs’ various claims boil down to an assertion that the Governor has not been granted the authority to remove the Lee statue or that some other document (the 1889 Joint Resolution, the deeds, or both) forbids him from ever doing so. Those claims always failed—and the 2020 Law simply confirms it.”

“…the 2020 Law plainly represents a legislative judgment that leaving the Lee statue in its present location is, in fact, inconsistent with public comfort, welfare, and even health. As the circuit court noted, Dr. Gaines explained why the continued presence of a massive monument to the Lost Cause in the heart of the Commonwealth’s capital city ‘stands as a contradiction to present societal values’ and ‘that there is a ‘consensus that the monuments are a troubling presence.’’” [page 25]

“…the Commonwealth is not just any landowner, and the display of government-owned monuments on government-owned property involves matters of core government speech. Accordingly, regardless of whether the sort of right that plaintiffs assert would be valid against a private party, it cannot prevent the Commonwealth of today from choosing a different course.” [page 54]

“This Court should take care to forestall any such questions. By the time this case is argued, the Commonwealth will have been enjoined for more than a year and that period will continue to expand during the time it takes for the Court to rule. Despite plaintiffs’ late-breaking arguments under the federal Contracts Clause—which are conspicuously absent from plaintiffs’ complaint and arose only as a response to the Commonwealth’s argument that the 2020 Law defeats plaintiffs’ claims…these cases are and always have been overwhelmingly about issues of Virginia law. If plaintiffs want to continue their fight beyond the Commonwealth’s own highest court, it should be their burden to convince the U.S. Supreme Court to grant a further injunction. Accordingly, the Court should—in addition to affirming the circuit court’s judgments on the merits—make it unambiguously clear that the Taylor injunction is immediately dissolved and that the Commonwealth may, finally, remove the Lee statue from its current location in the heart of its capital city.” [page 72-73] 

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