In Lee Monument lawsuit, judge rules it’s no longer public policy in Virginia to honor Confederacy

Thousands of protesters gather at the Robert E. Lee Monument for a peaceful rally in Richmond, Va., June 2, 2020. (Parker Michels-Boyce/ For the Virginia Mercury)

It’s no longer public policy in Virginia to hold the Confederacy in a state of perpetual veneration, a Richmond judge ruled Tuesday, telling Gov. Ralph Northam he can remove a towering statue of Robert E. Lee despite a promise more than 130 years ago to “faithfully guard … and affectionately protect it.”

While the decision is subject to appeal, it’s a victory for Northam, who announced plans to dismantle the statue in June but was blocked by a series of lawsuits filed by a handful of nearby residents and heirs to the family that originally gave the land to the state.

“The Lee statue does not represent who we have become as Virginians and it sends the wrong message to the rest of the world that we continue to venerate an individual who fought to maintain the enslavement of human beings,” Attorney General Mark Herring said in a statement. “This decision puts Virginia one step closer on the path to finally bringing this divisive symbol down.”

Richmond Circuit Court Judge Reilly Marchant’s opinion hinged on whether restrictive covenants written into the deed originally transferring the land to the state — which included promises to “faithfully guard” the statue, “affectionately protect it” and hold it “perpetually sacred” — could still be enforced today in light of shifting public policy.

In this case, the public policy in question is the state’s historic reverence for and celebration of the Confederacy. And Marchant cited an array of data points he said illustrated a shift in the state’s position.

First, he noted testimony offered by two noted Civil War historians, Edward Ayers and Kevin Gaines.

“Although imprecise as to the sole cause and purpose, their testimony overwhelmingly established the need of the southern citizenry to establish a monument to their ‘Lost Cause,’ and to some degree their whole way of life, including slavery,” he wrote. “Their testimony described a post-war South where the White citizenry wanted to impose and state unapologetically their continued belief in the validity and honor of their ‘Lost Cause,’ and thereby vindicate their way of life and their former Confederacy.

“It was out of this backdrop that the erection of the Lee Monument took place.”

He also wrote that he took notice of a variety of actions undertaken by the General Assembly, including the creation of Juneteenth as a state holiday to commemorate the abolition of slavery, the elimination of a state holiday honoring Lee, the creation of a commission to consider replacing a statue of Lee placed by the state in the U.S. Capitol, House Speaker Eileen Filler-Corn’s decision to remove a statue of Lee from the state Capitol along with seven other busts depicting ex-Confederates and the removal of four Confederate memorials on Monument Avenue in Richmond, one of which was toppled by protesters and three more removed by city-sanctioned crews.

But Marchant said the most persuasive piece of evidence presented by the state was the passage of a little-noticed budget amendment proposed by Northam during the special legislative session that concluded two weeks ago: Two lines directing that the Lee Monument be removed and repealing an 1889 Act of Assembly that echoed the restrictions in the original deed.

Marchant wrote that the Supreme Court of Virginia has ruled that the General Assembly is the “sole author of public policy” in the state. And so, he wrote, with the budget’s passage, a new public policy on the monument was cemented.

“The court agrees with the plaintiffs to the extent that the governor’s announced and intended actions might well have been a unilateral executive action in contravention of previously established public policy,” Marchant wrote. “However, given the court’s current finding of a change in that public policy, the proposed executive action would no longer contravene public policy nor be in violation of the Virginia Constitution.”