Va. voters could help decide fate of Confederate monuments

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Candidates have differing views on Civil War memorials; General Assembly could take action next year

Landmark News Service

Lawmakers in Virginia will have an opportunity next year to decide whether to make it easier for local governments to remove Confederate monuments, to clarify the law to make it more difficult to do so, or to leave the law as it is.

Statewide elections in November could help determine if the law changes.

Virginia law prohibits the removal of war monuments and memorials, but there’s confusion over whether the law applies to monuments erected before 1998, when the statute was amended to make it clear that disturbing or interfering with war monuments includes removing or damaging them.

Critics of Confederate monuments point out the memorials pay tribute to those who sought to break up the nation, to preserve slavery and that they’re modern-day rallying points for white supremacists. Monument supporters say they represent a part of history that shouldn’t be glossed over and pay tribute to the ancestors of those who died in the nation’s bloodiest conflict.

The issue of what to do with the monuments is taking on growing importance in the wake of a deadly protest Aug. 12 in Charlottesville, as white nationalists and neo-Nazis rallied to oppose removing a statue of Confederate Gen. Robert E. Lee from a city park. President Donald Trump has drawn global attention to Virginia and its Confederate monuments after repeatedly calling for them to remain in place following the violence in Charlottesville.

There has been no local effort to have Confederate monuments removed in Hillsville and Independence, but local governments around the country are grappling with what to do with monuments that pay tribute to a painful part of the nation’s history. Some already have begun to remove them, while others are considering adding historical context.

In the past week, the mayors of Norfolk and Portsmouth called for taking down their Confederate monuments and placing them in much-less-visible cemeteries. Richmond’s mayor also is calling for monuments in the Confederacy’s former capital to be removed or relocated, but will have a commission study the issue.

Absent of General Assembly action, however, each city could face legal challenges. Charlottesville’s monument hasn’t been removed even after its city council’s vote because a state judge enjoined it while the city’s plan is challenged in court.

Richard Schragger, a University of Virginia law professor, said Charlottesville’s legal argument is that the Lee statue doesn’t qualify as a war memorial. There’s also a dispute about whether the law applies to monuments that were erected before 1998.

In the case of Portsmouth and Norfolk monuments that pay tribute to Confederate troops, Schragger said it’s unclear whether relocating them would fall under the prohibition on removing them.

“There may be some ambiguity there,” he said.

(Like those monuments, Confederate memorials in Carroll and Grayson counties honor local soldiers, not a specific person or battle, and feature statues of generic Confederate soldiers.)

The mayor of Charlottesville has asked Gov. Terry McAuliffe to convene a special General Assembly session to change the law so local governments can determine what happens to their monuments. But the governor’s office has said calling a special session would be “redundant” while the lawsuit addressing Charlottesville’s monument is heard in court.

The mayors of Norfolk, Portsmouth and Richmond are using the approach McAuliffe urged local governments to take in a statement released last week. McAuliffe previously opposed the removal of Confederate monuments, which aligned him with many Republicans. But McAuliffe’s and other Democrats’ changes of heart have created a defining issue in this year’s state elections.

“The recent events in Charlottesville demonstrate that monuments celebrating the leadership of the Confederacy have become flashpoints for hatred, division and violence,” McAuliffe said. “I hope we can all now agree that these symbols are a barrier to progress, inclusion and equality in Virginia and, while the decision may not be mine to make, I believe the path forward is clear.”

This is McAuliffe’s last year in office. Unless he calls the General Assembly into a special session, it will be up to the next governor to decide whether to usher in legislation that clarifies what constitutes a war monument covered under the law and what can be done with them, or veto any proposed changes.

Democratic Lt. Gov. Ralph Northam, who is running for governor, is urging local governments to move their Confederate monuments to museums. His campaign says he supports allowing local governments to make that decision.

His opponent, former Republican National Committee Chairman Ed Gillespie, opposes the removal of Confederate monuments. He has said decisions about monuments are best made at the local level, but it’s unclear whether Gillespie believes they have the ability to make those decisions.

“Ed is opposed to taking down statues, but is not calling for and has never called for a change in the current state law,” Gillespie spokesman David Abrams said in an email.

“Ed believes localities should have the ability to make those decisions themselves, and that the statues should remain, but be placed in historical context. A court is currently determining the bounds of local authority in this regard, and we should let that process run its course.”

But the law isn’t ambiguous for Republican John Adams, who is running for attorney general.

“Current state law prohibits the removal of war monuments by localities,” Adams said. “The prohibition on ‘disturbing or interfering’ with the monuments would include moving.”

A spokesman for Attorney General Mark Herring, a Democrat seeking re-election, offered a more nuanced view.

“There may be different restrictions that apply to different monuments, or no restrictions, depending on where it is, who owns it and a number of other factors that individual localities will need to evaluate and consider,” Michael Kelly said in an email.

Part of Herring’s views can be understood in a 2015 legal opinion about whether a Confederate flag could be removed from a monument in Danville that marked the location of the Sutherlin Mansion, which served as the temporary residence of Confederate President Jefferson Davis at the end of the Civil War. Herring wrote that war monuments can’t be removed, but monuments to buildings can.

“The importance of honoring all our veterans, especially those who have given their lives and paid the ultimate sacrifice for us, our country and our freedoms, cannot be overstated. These brave men and women deserve our full support, and the General Assembly has chosen to extend certain protections to monuments honoring their service,” Herring wrote. “The General Assembly has not chosen, however, to extend that same level of protection to memorials erected to recognize the historical significance of buildings.”

A state judge ultimately ruled the monument law didn’t apply because it was built before 1998 and the flag could come down. State lawmakers in 2016 sought to clarify the law to ensure it covered war monuments “regardless of when erected.” McAuliffe vetoed the bill.

“There is a legitimate discussion going on in localities across the Commonwealth regarding whether to retain, remove or alter certain symbols of the Confederacy,” McAuliffe wrote at the time. “This bill effectively ends these important conversations.”

Herring’s opinion that war monuments can’t be removed extends beyond the text of the law. The statute refers to monuments built for “any war or conflict.” But Herring specifies in his opinion that the law also applies to memorials and monuments for war veterans because that term is referenced elsewhere in state law.

That’s significant because Norfolk’s Confederate monument, which is emblazoned with a Confederate battle flag and emblem and topped by a soldier, also has a marking that says “Our Confederate Dead 1861-1865.”

Portsmouth’s monument bears a similar inscription – “To Our Confederate Dead” – and is ringed by four statues of troops commemorating each branch: artillery, infantry, navy and cavalry.

What does the state code say?
Virginia Code 15.2-1812: Memorials for war veterans
A locality may, within the geographical limits of the locality, authorize and permit the erection of monuments or memorials for any war or conflict, or for any engagement of such war or conflict, to include the following monuments or memorials: Algonquin (1622), French and Indian (1754-1763), Revolutionary (1775-1783), War of 1812 (1812-1815), Mexican (1846-1848), Confederate or Union monuments or memorials of the War Between the States (1861-1865), Spanish-American (1898), World War I (1917-1918), World War II (1941-1945), Korean (1950-1953), Vietnam (1965-1973), Operation Desert Shield-Desert Storm (1990-1991), Global War on Terrorism (2000- ), Operation Enduring Freedom (2001- ), and Operation Iraqi Freedom (2003- ). If such are erected, it shall be unlawful for the authorities of the locality, or any other person or persons, to disturb or interfere with any monuments or memorials so erected, or to prevent its citizens from taking proper measures and exercising proper means for the protection, preservation and care of same. For purposes of this section, “disturb or interfere with” includes removal of, damaging or defacing monuments or memorials, or, in the case of the War Between the States, the placement of Union markings or monuments on previously designated Confederate memorials or the placement of Confederate markings or monuments on previously designated Union memorials.