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