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'Today it is clear — the largest Confederate monument in the South is coming down.' Court rulings clear way for removal of Lee Monument in Richmond.
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'Today it is clear — the largest Confederate monument in the South is coming down.' Court rulings clear way for removal of Lee Monument in Richmond.

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Va. AG Mark Herring on removing the Lee statue in Richmond

Richmond’s iconic but divisive Robert E. 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 seeking to reverse Gov. Ralph Northam’s order to remove the statue last year during racial justice protests that swept the former capital of the Confederacy following the death of George Floyd.

There’s no firm date yet for removing the towering statue. A statement from Northam’s office said preparations 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. Removal will be a multiday process, and no action on the statue is expected this week, officials said.

“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,” Northam said. “Today it is clear — the largest Confederate monument in the South is coming down.”

At a news conference Thursday, 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, 21-foot-tall bronze statue of the Confederate general 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 Judge W. Reilly Marchant ruled against them, holding that arguments to keep the statue 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: “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.”

The judges dismissed the Gregory suit and found that he has “no property right, related to the Lee Monument, to enforce against the Commonwealth.”

Del. Lamont Bagby, chairman of the Virginia Legislative Black Caucus, and Robert Barnette, president of the Virginia State Conference NAACP, appeared with Herring at his news conference.

“It is a day to celebrate,” said Bagby, D-Henrico. 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.

Del. Lamont Bagby on what the Lee statue removal means to him

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, noted the justices wrote that even if the old deeds created restrictive covenants, they are unenforceable because they are contrary to public policy.

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, and Loving v. Virginia, on interracial marriage, as well as the 1970 revision of Virginia’s 1902 Constitution, which reflected the 1890s public policy, Tobias said. He called the court’s decision “a thoroughgoing rejection of the arguments that the plaintiffs make.”

It’s unclear where the statue will be taken after it loses its spot on Monument Avenue, where it has stood since 1890, the first statue up and the last to come down.

fgreen@timesdispatch.com

(804) 649-6340

Staff writer Patrick Wilson contributed to this report.

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