In the summer of 2017, white nationalists converged on Charlottesville, Virginia, to protest the removal of a monument to Confederate general Robert E. Lee. The rally, which descended into violence that left one woman dead, sparked a national reckoning over the nation’s Confederate statues, more than 100 of which have since been taken down. But as Liam Stack reports for the New York Times, a Virginia judge has now ruled that the Lee statue at the heart of the Charlottesville protest, along with another monument to Stonewall Jackson, cannot be removed because they are war memorials.
The lawsuit against Charlottesville’s city council was filed in March 2017—a few months before the protest—by citizens who claimed that councilors had violated state law when they voted to remove the Lee statue. The law in question, enacted in 1904, stipulates that local governments can authorize the building of war memorials, but the power to remove, damage or deface said memorials lies with the state. According to Paul Duggan of the Washington Post, the law originally applied to Virginia counties, but was expanded in 1997 to also include cities.
In the wake of the rally, the city council also voted to take down a statue of Jackson, a Confederate general, and the lawsuit was amended to include that monument as well. As part of its defense, the city argued that the Lee and Jackson statues are not in fact war memorials, but instead symbols of white supremacy; both monuments were erected in the 1920s, during the South’s Jim Crow era.
In an April 25 letter explaining his ruling, Judge Richard E. Moore of the Charlottesville Circuit Court acknowledged that there is “certainly much disputed about [the monuments’] effect and purpose, why they were put there, their impact on people, the justification or rationale for them, and the intent of the benefactor and of the City itself.” But, Moore continued, “there is no real factual dispute as to what they are”—war memorials, in other words, that are therefore protected by the state.
“While some people obviously see Lee and Jackson as symbols of white supremacy, others see them as brilliant military tacticians or complex leaders in a difficult time,” the judge added. “In either event, the statues to them under the undisputed facts of this case still are monuments and memorials to them, as veterans of the Civil War.”
Moore goes on to note that while he finds this conclusion “inescapable,” the ruling does not mean that the case is settled. Other legal questions still have to sussed out—like whether the state law violates the equal protection clause of the Fourteenth Amendment, which effectively states that governing bodies must extend similar treatment to all individuals in similar conditions. “[T]he government is prohibited from conveying messages that denigrate or demean racial or religious minorities,” Slate’s Micah Schwartzman and Nelson Tebbe explain. “While private citizens may engage in hate speech under existing law, the government may not demean racial or religious minorities without running afoul of the guarantee of equal protection contained in the 14th Amendment.” The plaintiffs have filed a motion to exclude an equal protection defense, according to Tyler Hammel of the Daily Progress.
The court also has yet to rule on whether the city councilors have statutory immunity; if it is determined that they do not, they could find themselves liable for damages and legal fees should a judgement be made in favor of the plaintiffs.
In his letter, Judge Moore notes that he also needs to decide which issues should be decided by a jury trial. He said that he hopes to rule on these matters this month. According to Duggan of the Post, lawyers expect that the case will ultimately be appealed to the Virginia Supreme Court.