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Virginia Supreme Court Allows Governor to Tear Down Robert E. Lee Statue, Rejects ’19th Century Attempt to Barter Away the Free Exercise of Government Speech’


Statue of Robert E. Lee

The highest court in the Commonwealth of Virginia on Thursday found that restrictive covenants purporting to bar the state from removing Confederate statues are not valid or enforceable as a matter of public policy. The ruling clears the way for officials to remove a controversial statue of one-time general and slave owner Robert E. Lee.

The decision comes by way of two separate lawsuits filed by residents of Virginia who aimed to stop Gov. Ralph Northam (D) from removing the 61-foot-tall monument of Lee that has loomed over a major thoroughfare in the capital city of Richmond for more than 100 years.

The cases centered around language from deeds signed in 1887 and 1890 which conveyed a round circle of land at the intersection of Monument Avenue and Allen Avenue. The terms of the first deed require the use of the circle for a monument to Lee and stipulate the Lee Monument Association must hold the circle “only for the said use.” The 1890 deed conveys ownership of the monument and the circle to Virginia with language expressing “her guarantee that she will hold,” referring to the commonwealth, “perpetually sacred to the Monumental purpose to which they have been devoted.”

In response to the lawsuits, Northam claimed the language in the deeds is simply precatory, or advisory, which isn’t enough to create an enforceable property right — a restrictive covenant or easement — as the plaintiffs alleged. Additionally, the governor claimed that even if the language of the deeds did, at one point, create restrictive covenants, they can no longer be enforced because such rights cannot force a state entity to forever “engage in expression with which it disagrees.”

The Supreme Court of Virginia agreed with the governor, finding that “the purported restrictive covenants are unenforceable.”

Northam made the decision to remove the Lee monument in June 2020 during the height of Black Lives Matter protests over the death of George Floyd. Protestors in the Old Dominion State flocked to the statue and defaced it with a series of anti-racist slogans.

The first lawsuit, filed by lead plaintiff Helen Marie Taylor on behalf of residents who mostly own property near the Lee statue on Monument Avenue, argued that Northam’s plans to remove the monument were unconstitutional in light of an 1889 joint resolution which asked the then-governor to sign the original deed.

A circuit court previously dismissed the Taylor plaintiffs’ claims by finding that the 1889 joint resolution was not binding on the governor and had also been specifically repealed in October 2020.

On Thursday, the high court agreed with the lower court.

“[T]here is sufficient evidence to support the circuit court’s ruling that the purported restrictive covenants are unenforceable, even without considering the 2020 Budget Amendment, and that the terms of the 1889 Joint Resolution are not binding on the current Governor and did not strip the Governor of his authority to order the removal of the Lee Monument from the Circle,” the justices wrote. “Therefore, we will affirm the judgment of the circuit court.”

The court’s analysis continued on in order to vindicate the ability of the government to speak its mind on matters of public importance and reasoned that the “authorized presence of the Lee Monument on public property is indisputably government speech made on behalf of the Commonwealth.”

“Government speech is a vital power of the Commonwealth, the democratic exercise of which is essential to the welfare of our organized society,” the justices opined. “Indeed, it would be difficult to imagine a government that could function absent this freedom. ‘A government entity has the right to speak for itself [; it] is entitled to say what it wishes, and to select the views that it wants to express.’ Thus, the Commonwealth has the inherent power to place or remove monuments on its property.”

A lengthy discussion about the powers of antiquated restrictive covenants and the state was also included in the 26-page opinion:

Governor McKinney had no power to contract away the Commonwealth’s essential power of freedom of government speech in perpetuity by simply signing the 1890 Deed. Similarly, the General Assembly of 1889 had no authority to perpetually bind future administrations’ exercise of government speech through the simple expedient of a joint resolution authorizing the 1890 Deed. The Commonwealth has the power to cease from engaging in a form of government speech when the message conveyed by the expression changes into a message that the Commonwealth does not support, even if some members of the citizenry disagree because, ultimately, the check on the Commonwealth’s government speech must be the electoral process, not the contrary beliefs of a portion of the citizenry, or of a nineteenth-century governor and legislature.

Therefore, any restrictive covenant purportedly created through the 1890 Deed, which would prevent the Commonwealth from moving a monument owned by the Commonwealth and on property owned by the Commonwealth is unenforceable because, at its core, that private property interest is the product of a nineteenth-century attempt to barter away the free exercise of government speech regarding the Lee Monument in perpetuity.

“Assuming arguendo that the Taylor Plaintiffs are correct in claiming that the language in the 1887 Deed and the 1890 Deed created restrictive covenants,” the high court concluded, “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.”

MORE: ‘A Matter of Racial Equality’: Virginia’s Solicitor General Urges Top Court to Affirm Ruling Allowing Removal of Robert E. Lee Statue

The second plaintiff, William Gregory, claimed that Virginia long ago agreed to “faithfully guard” and “affectionately protect” the monument and that he had a viable claim to enforce that covenant on the state because of his lineage as a descendent of two of the signatories on both the 1887 and 1890 deeds.

The high court tidily rubbished his legal claim in a four-page opinion.

“Gregory has no property right, related to the Lee Monument, to enforce against the Commonwealth,” the justices wrote. “As a result, the circuit court correctly found that Gregory failed to articulate a legally viable cause of action against Governor Northam.”

[image via Zach Gibson/Getty Images]

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