Aerial view of Robert E. Lee statue on Monument Avenue, Richmond
Richmond’s iconic but divisive Lee Monument is coming down soon after the last obstacles to removal were cleared Thursday by two unanimous Virginia Supreme Court opinions.
The justices rejected appeals from five nearby property owners and an heir of those who donated the land for the Lee statue to bar moving it as ordered by Gov. Ralph Northam last year during racial justice protests that swept the former capital of the Confederacy following the death of George Floyd.
A statement from Northam’s office said preparations for the statue’s removal have been underway for months and that the Department of General Services can now begin executing a plan that prioritizes public safety.
The process is complicated by several logistical and security concerns, including street closures and the equipment required to ensure the safe removal of the 12-ton statue, said the governor’s office. Removal of the statue will be a multi-day process and no action on the statue is expected this week, said officials.
“Today’s ruling is a tremendous win for the people of Virginia. Our public memorials are symbols of who we are and what we value. When we honor leaders who fought to preserve a system that enslaved human beings, we are honoring a lost cause that has burdened Virginia for too many years.”
He added, “Today it is clear—the largest Confederate monument in the South is coming down.”
At a news conference Thursday, Virginia Attorney General Mark Herring said he doesn’t anticipate an appeal to the U.S. Supreme Court but would fight one if there is.
“I don’t think there’s any legal basis for a further appeal to the U.S. Supreme Court, but I’ll say this. If they try, we will be there to oppose it. This statue is coming down, and I really hope that the parties in the case and the lawyers who are representing them see the strength and the power of the decision, and the will of the people that it come down, and not delay it further,” Herring said.
Patrick McSweeney, lawyer for the property owners, said Thursday that he had not yet had a chance to read the rulings and indicated he may or may not comment.
The 130-year-old, 60-foot-tall bronze statue of Confederate Gen. Robert E. Lee on a horse gained national attention last year as a focus of protests in Richmond. The base of the monument is now covered with graffiti and it was illuminated at night with holographic images. A year ago, demonstrators at the circle — now surrounded by fencing — were tear gassed by police.
Other Confederate statues and memorials along Monument Avenue located on city property came down following the protests. The Lee statue is on state property.
William C. Gregory, a descendant of two of the people who donated the land to the state, filed suit in Richmond Circuit Court to block it, alleging that the 1887 and 1890 deeds giving the land to the state created a perpetual covenant prohibiting removal of the Lee statue, which he had a right to enforce as an heir to the original land donors.
When that suit failed, five area residents, two of them residents of the Monument Avenue Historic District, also sued, arguing that the 1887 and 1890 deeds require that the monument be held “perpetually sacred” by the state.
Richmond Circuit Court Judge W. Reilly Marchant ruled against them, holding that arguments to keep it in place were contrary to current public policy as established by the General Assembly last year. An injunction was put in place barring the monument’s removal pending the appeal to the Virginia Supreme Court.
In the unanimous opinion Thursday in the residents’ case, the high court states that, “Those restrictive covenants are unenforceable as contrary to public policy and for being unreasonable because their effect is to compel government speech, by forcing the Commonwealth to express, in perpetuity, a message with which it now disagrees. For the reasons stated, we hold that the circuit court did not err in concluding that the purported restrictive covenants are unenforceable, that Governor Northam’s order to remove the Lee Monument did not violate the Constitution of Virginia, and that all of the Taylor Plaintiffs’ claims are without merit. Accordingly, we will affirm the judgment of the circuit court and immediately dissolve all injunctions imposed by the circuit court.”
In the Gregory case the justices ruled, “Gregory has no property right, related to the Lee Monument, to enforce against the Commonwealth. As a result, the circuit court correctly found that Gregory failed to articulate a legally viable cause of action against Governor Northam and Director Damico, and it did not err in granting their demurrer and dismissing Gregory’s claim with prejudice.”
Del. Lamont Bagby, D-Henrico and chairman of the Virginia Legislative Black Caucus, and Robert Barnette, president of the Virginia State Conference NAACP appeared with Herring at his press conference.
Bagby said, “It is a day to celebrate,” He said he was proud of the work of the attorney general, the governor, the General Assembly and the NAACP.
“We are glad that this was a unanimous decision and we look forward to telling the full story of Virginia’s history,” Barnette said.
Virginia Solicitor General Toby J. Heytens, with Herring’s office, wrote the briefs and argued the case before the Virginia Supreme Court. The justices did not ask questions of the lawyers from either side when the case was argued. Heytens has since been nominated for a seat on the Richmond-based 4th U.S. Circuit Court of Appeals.
The opinion in the property owners’ case was written by Justice S. Bernard Goodwyn. The Gregory case was authored by the court. “This is a pretty complete vindication of the governor’s case,” said Richard Schragger, who teaches at the University of Virginia School of Law.
Carl Tobias, with the University of Richmond School of Law, said the ruling, “Is a thoroughgoing rejection of the arguments that the plaintiffs make. The court summarized the ruling well in its conclusion: [we] ‘hold that the circuit court did not err in concluding that the purported restrictive covenants are unenforceable, that Governor Northam’s order to remove the Lee Monument did not violate the Constitution of Virginia, and that all of the [property owners’] claims are without merit'”
Tobias noted the justices wrote that even if the old deeds created restrictive covenants, they are unenforceable because they are contrary to public policy. And, he said, “For being unreasonable because their effect is to compel government speech, by forcing the Commonwealth to express, in perpetuity, a message with which it now disagrees.”
He said the court drew substantially on the testimony of the state’s expert witnesses that Virginia’s public policy has changed since the 1890s.
The justices also cited the major U.S. Supreme Court cases of Brown v. Board of Education, on segregated public schools; Loving v. Virginia, on interracial marriage; and the 1970 revision of Virginia’s 1902 Constitution, which reflected the 1890s public policy, Tobias said.
This is breaking news. This story will be updated.
PHOTOS: 40 photos of Richmond’s Lee Monument
Visitors pray together at the Lee monument in Richmond, Va., on Sunday, July 5, 2020. Azaria Fleurima of Chester, one of prayers, said she prayed about “what God is doing in this world and we would like God bring us together with his love instead of all these hates, madness, bitterness and brokenness in this world.”
Robert E. Lee statue on Monument Avenue is shown in Richmond, Va., on Tuesday, April 20, 2021. (A photo was taken by a drone)
Robert E. Lee statue on Monument Avenue is shown in Richmond, Va., on Tuesday, April 20, 2021. (A photo was taken by a drone)
Robert E. Lee statue on Monument Avenue is shown in Richmond, Va., on Tuesday, April 20, 2021. (A photo was taken by a drone)
Aerial photo of Robert E. Lee monument on Saturday, Nov. 14, 2020.
Protesters gather at Robert E. Lee statue in Richmond, Va., on Wednesday, June 3, 2020.
Protesters march from Robert E. Lee statue in Richmond, Va., on Wednesday, June 3, 2020.
Protesters gather at Robert E. Lee statue in Richmond, Va., on Wednesday, June 3, 2020.
James Kelley of Richmond, left, and Domico Phillips of Henrico met each other at one of protests in Richmond. They have been building their friendship last few weeks as they attend protests. They were shown at Robert E. Lee monument in Richmond on Monday, June 29, 2020.
Visitors to the Robert E. Lee monument on Monument Avenue, after sunset.
Visitors to the Robert E. Lee monument on Monument Avenue, after sunset.
Visitors to the Robert E. Lee monument on Monument Avenue, after sunset.
Visitors to the Robert E. Lee monument on Monument Avenue, after sunset.
Aerial photo of Robert E. Lee statue on Monument Avenue in Richmond on Tuesday, July 11, 2020.
The Robert E. Lee statue photographed on Wednesday, May 19, 2021 at Monument Avenue in Richmond, Virginia.
The Robert E. Lee statue photographed on Thursday, May 20, 2021 at Monument Avenue in Richmond, Virginia.
A woman looks through the fencing around the Robert E. Lee monument on Monument Ave. in Richmond, VA Thursday, Feb. 25, 2021.
A star shines to the east of the Lee Statue Wed., Jan. 13, 2021.
Signs posted by the Richmond City Police prohibit firearms at the Lee Monument.
A basketball and hoop rest in the circle around the graffiti-covered base of the Lee statue on Monument Ave. in Richmond, VA Monday, August 24, 2020.
Four Richmond Police Officers on bikes sat in the east median across from the Lee Monument on Monument Ave. in Richmond, VA Wednesday, August 5, 2020. Police presence seems to be stepped up after complaints from residents in the area about noise into the night and campsites with grills, etc set up on the four medians surrounding Lee Circle.
An image of George Floyd is projected onto a screen and onto the Lee Monument behind it Tuesday, July 28, 2020.
Area musicians participated in a “violin vigil” for Elijah McClain, Tuesday 7/21/2020 at the Robert E. Lee statue on Monument Avenue. McClain, was killed last August, by police officers in Aurora, Colorado, as the 23-year-old walked home from a convenience store.
Marcus-David Peters is projected on to the Lee Monument Fri., July 17, 2020.
People gather at the Lee Circle after marching from the Capitol during the Black Women Matter rally Friday, July 3, 2020.
The statue of Robert E. Lee on Monument Ave. in Richmond, VA Friday, June 26, 2020.
A person climbing on the Robert E. Lee statue in Richmond, Va. gives thumbs up to their friend after taking a photo on their phone on June 24, 2020.
The crescent moon shows below the statue of Robert E. Lee’s horse “Traveller” in Richmond, Va. on June 24, 2020.
Graffiti painted on the barrier surrounding the statue of Robert E. Lee on Monument Ave. in Richmond, VA Tuesday, June 23, 2020. The area, scene of many protests, is closed from sunset to sunrise.
Visitors to the Robert E. Lee monument on Monument Avenue, Sunday 6/21/2020. Isiah Robinson played the trombone along the new barrier wall surrounding the statue.
During a candle light vigil at the Lee Monument on Friday June 19, 2020.
People gather around the Lee Monument to celebrate Juneteenth Friday, June 19 2020.
An image of Frederick Douglas is projected onto the Lee Monument Thursday night, June 18 2020.
A video of Malcolm X is projected onto the Lee Monument Thursday night, June 18 2020.
A man takes photos of graffiti covering the base of the Robert E. Lee statue on Monument Ave. in Richmond, VA Wednesday, June 17, 2020.
The graffiti-smeared statue of Robert E. Lee and Traveller stand behind a traffic sign with Marcus-David Peters Cir. on a hand-written sign below on the circle that surrounds the monument on Monument Ave. in Richmond, VA Wednesday, June 10, 2020. Peters was the man suffering a mental condition who was shot by a Richmond police officer several years ago.
Protesters at Lee monument on Monument Avenue, Tuesday 6/2/2020.
The star Sirius moves behind the Lee Monument during a time exposure image taken on Sat., Jan. 16, 2021.
The Richmond Police Department’s use of tear gas during a June 1 protest at the Robert E. Lee monument has prompted a class-action lawsuit.
A state police tactical vehicle was surrounded by a cloud of tear gas at the Lee statue on Monument Avenue in Richmond on Monday.
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