The state’s high court heard oral arguments Tuesday on whether Gov. Ralph Northam (D) had the authority to order the statue’s removal, which he did last June, subsequently backed by a law passed by the General Assembly funding the removal and repealing the original acceptance of the statue. The justices asked no questions of either side before adjourning two cases on the issue in about half an hour.
Though the court agreed to hear the appeal from five Richmond property owners and one descendant of a landowner who want to preserve the statue — a flash point for protests after the killing of George Floyd in Minneapolis police custody last year — the lack of questions meant the court gave no indication of how it might rule. Virginia Solicitor General Toby Heytens argued for less than a minute in the second case, noting that “no court has ever recognized a personal, inheritable right to dictate the content of poor government speech about a matter of racial equality, and this court should not be the first one ever to do so.”
Heytens pointed out that legal challenges have successfully delayed the removal of the Lee statue for a year, even as Richmond Mayor Levar Stoney removed other tributes to Confederate leaders. Lee’s statue, and the circle of land on which it sits on Monument Avenue, was deeded to the state, not the city, by nearby landowners in 1889 and accepted by a resolution of the General Assembly, which entered into a restrictive covenant saying that the ground was “perpetually sacred” and that Virginia would “faithfully guard it and affectionately protect it.”
As the statue was covered with graffiti and vilified by protesters, Northam issued an order to take it down last June. But the five landowners — Helen Marie Taylor, John-Lawrence Smith, Evan Morgan Massey, Janet Heltzel and George D. Hostetler — and William Gregory, a descendant of the original landowners, sued the governor and won a temporary injunction.
While the suit was pending, both houses of the Virginia General Assembly voted during a special session last fall to repeal the resolution that accepted the statue and to allocate funding to remove it. Northam signed that legislation in November. The new law appeared to damage the landowners’ argument that only the General Assembly could dictate state policy and revoke a covenant it had made.
But even before Northam signed the bill into law, a circuit court judge in Richmond ruled in October that Virginia was no longer bound by the agreements reached in the late 19th century, citing the bill’s recent passage as evidence that public policy toward the monument had changed. Still, Richmond Circuit Court Judge W. Reilly Marchant agreed to extend the injunction against removal to allow the landowners to appeal.
In arguing for the landowners, attorney Patrick M. McSweeney said the Virginia Constitution prohibited the General Assembly from passing special legislation for cases pending in the courts. “Special laws cannot invalidate the restrictive covenants,” McSweeney argued to the Supreme Court on Tuesday, “which in this case clearly involve contracts.”
The Virginia attorney general’s brief argued that restrictive covenants are governed by property law, not contract law, and that the U.S. Supreme Court has held that “judicial enforcement of racially restrictive covenants violates the Equal Protection Clause” of the U.S. Constitution.
Joseph E. Blackburn, representing the landowner descendant, Gregory, said that the easement granted by the landowners “creates a servitude upon the Lee Circle. He [Gregory] does have a veto power. He is here to stop the sovereign from doing what the sovereign can’t do and to stop the sovereign from breaking its word.”
Heytens said that “this case is about whether a handful of private individuals possess a judicially enforceable right to override the decision of the commonwealth’s political branches, and the will of many of their own neighbors, to force the commonwealth of today and tomorrow to continue to maintain this statue indefinitely.”
Though 70 minutes had been allotted to hear the two cases, neither side used up its full time for argument and no justices spoke during or after the arguments.
The court did not indicate when it would issue its ruling.