Equal protection: Judge ponders city’s last statue defense, rejects another

Judge Richard Moore, center, heard arguments from Lisa Robertson for the city and by Braxton Puryear for the plaintiffs. Sketch by Hawes Spencer Judge Richard Moore, center, heard arguments from Lisa Robertson for the city and by Braxton Puryear for the plaintiffs. Sketch by Hawes Spencer

The City of Charlottesville recently came up with another theory on how to defend itself in the lawsuit over its allegedly unlawful tampering with statues of Confederate generals: that the city never formally accepted the oversized bronze equestrian statues of Robert E. Lee and Stonewall Jackson. But Circuit Court Judge Richard Moore rejected that argument Wednesday.

“The city’s position is a narrow one,” said Moore, pointing to an array of countervailing evidence, including City Council minutes, real estate deeds, construction projects, and dedication ceremonies—as well as long-standing efforts to tout the statues as civic assets.

“It’s clear to me that the city did authorize the erection of these statues and accept them,” said Moore. “There’s no question in my mind.”

This ruling leaves just one remaining defense for the city, which was sued after voting in early 2017 to remove the statues—that the state law propelling the suit is “invalid and unenforceable” as a violation of the Equal Protection Clause of the 14th Amendment. Leading this defense is Chief Deputy City Attorney Lisa Robertson, who noted that the law, first enacted in 1904, sprang from the Jim Crow era, the segregationist period following the Civil War and Reconstruction.

“The law was motivated by racial animus, and black people have been injured by the message,” said Robertson.

She told Judge Moore that a clue to the law’s nefariousness is that in forbidding anyone from removing statues, it deprives local government the right to handle its own property.

“That in and of itself shows that something’s not right,” said Robertson. And she noted that the original text of the law focused only on Confederate monuments.

However, University of Richmond law professor Kevin Walsh, arguing for the plaintiffs, said the law, amended about a dozen times by the General Assembly, shouldn’t be judged on its first iteration.

“What is the purpose of this law?” asked Walsh. “It is plainly historical preservation. Why Confederate monuments? That’s what people were asking to put up.”

During the three-hour July 31 hearing, Judge Moore claimed that he remained undecided on the city’s equal protection argument.

“This is probably the thorniest of the four or five issues I’ve addressed,” he said.

Three weeks earlier, at another motions hearing, he suggested Vietnamese-Americans might take issue with some American monuments to the war in Vietnam. “There is no right not to be offended,” he said then.

On Wednesday, he revealed more of his thinking. “Jim Crow was a horrible thing—did lots of damage,” said Moore. “The problem is that it tends to swallow everything else up, but it can swallow up the human desire to memorialize their loved ones. You can’t throw away everything done in Germany from 1927 to 1945 and say it’s due to the Nazis.”

In April, Moore disappointed those who would purge the statues from their perches in downtown parks by ruling that the statues constitute war memorials as defined by the controversial law. A year earlier, he ordered the city to remove black mourning tarps that city crews had draped over the statues after the August 12, 2017, death of anti-racist activist Heather Heyer, killed by a young Adolf Hitler devotee after the curtailed white nationalist rally.

Ralph Main, an attorney for the plaintiffs, recalled those 188 days under tarps as damaging to students, tourists, artists, and the dozen or so plaintiffs.

“At trial,” Main declared, “I’m gonna put people on the witness stand, and they’re gonna testify that they were not able to see those monuments for 188 days; and that’s damage.”

Both sides told the judge that there are no longer any factual matters in dispute—just competing legal theories. The judge gave no timeline for when he might rule on the city’s Equal Protection argument, a ruling that could cancel the three-day trial slated to begin in September.

“I’m not sure we even need a trial,” said the city’s Robertson.

“I’m not either,” replied the judge, “if we keep whittling things away.”

 

 

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Harvey Liszt

You know something’s very wrong with when you can only justify it with a comparison, however weird (1927? where did that come from?) to Nazi Germany. It’s difficult to decide which of the judge’s remarks is the most ill-considered. The timing and motivation for these statues are well established now. It’s not about loved ones, it’s about hated ones.