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Supporters and protesters converge during a press conference organized by vice mayor Wes Bellamy at Lee Park on Tuesday, March 22, 2016 to call for the removal of the Robert E. Lee statue in downtown Charlottesville. Photo/Ryan M. Kelly/The Daily Progress

Though a Charlottesville Circuit Court judge recently ruled on a major aspect of the 2017 lawsuit over City Council’s votes to remove two Confederate statues, several issues are still unresolved.

As one of the few remaining issues of contention, the decision that the statues are war memorials — likely meaning that they are protected under state code — was taken by some members of the community to be the nail in the coffin for the defendants’ arguments.

However, Judge Richard E. Moore has yet to rule on a few motions, one of which — an argument that the statues violate the equal protection clause of the 14th Amendment — remains on the table, with Moore indicating Wednesday he wished to see the argument fleshed out with further evidence.

According to Richard Schragger, a University of Virginia professor of law who focuses on the intersection of constitutional law and local government law, an equal protection defense is fairly straightforward and is intended to prevent the government from racial discrimination.

Before Moore’s ruling, the defense had also argued that the statues were not monuments to a specific war or veteran, simply to Gens. Robert E. Lee and Thomas “Stonewall” Jackson as people, and were therefore not protected by state code.

“The claim here would be that the motive for putting up the Lee and Jackson statues was white racial superiority,” he said.

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In order to make this argument, the defendants — the city, City Council and the individual councilors who voted to remove the statues — will have to present expert testimony from historians that prove, to Moore’s satisfaction, that the intention behind the statues was to discriminate against residents of color, Schragger said.

 “By placing one in a ‘whites-only’ park and a time of Ku Klux Klan resurgence in Charlottesville, the argument could be made that the statues violate the constitutional rights of a protected class,” he said.

The Jackson statue was unveiled in 1921 at ceremony that served as “the crowning event of the Confederate Reunion of the Grand Camp, United Confederate Veterans and the Virginia Division of Sons of Confederate Veterans,” according to a Daily Progress article. That same year, the Progress reported that the Ku Klux Klan organized in Charlottesville.

Statue of "Stonewall" Jackson unveiled in 1921
Hundreds gathered in Charlottesville for Klan meeting in 1921

“Hundreds of Charlottesville’s leading business and professional men met around the tomb of [Thomas] Jefferson at the midnight hour one night last week and sealed the pledge of chivalry and patriotism with the deepest crimson of red American blood,” according to a June 28, 1921, report.

The Lee statue followed in 1924. Both were donated by philanthropist Paul Goodloe McIntire.

At the Jackson statue ceremony, UVa President Edwin Alderman said McIntire wanted to use the monument “to teach to other ages how moving and eternal are the qualities of courage and character, of action and principle, of loyalty and honor, when embodied in one strong, appealing, fascinating personality,” according to the Progress.

In addition to the equal protection defense, Chief Deputy City Attorney Lisa Robertson — who is representing the city, City Council and former Councilor Bob Fenwick — claims that the city never accepted the 1997 amendment to the state code and is therefore not subject to it.

Fenwick, the only individual councilor who opted not to be represented pro bono by the massive law firm Jones Day, has maintained that councilors acted in accordance to the law when they voted to remove the statues.

On a website he recently launched, Fenwick outlines his argument, focusing in part on a retroactivity issue settled by Moore early in the case.

“The Danville Virginia Circuit Court, a court of equal standing if not equal precedent, heard a case which hinged on the retroactive application of this law and said the law DID NOT apply retroactively. The judge also said the law was unsettled,” Fenwick wrote. “Virginia is a Dillon Rule state and localities have no power except that which the state legislature has specifically granted them.”

Del. David J. Toscano, D-Charlottesville, said he believes the best way to settle the suit would be to change the law to give decision-making power to localities.

For the past two General Assembly sessions he has tried to do just that, but his bills have died in committees made up of what Toscano described as “mostly rural Republicans.”

“Civil War imagery and the notion of the so-called Lost Cause die hard in the South,” he said.

Toscano, who announced his retirement at the end of the 2019 legislative session, said a better strategy to change the law may be to allow localities to remove monuments to people who took up arms against the United States, which would apply to both the Lee and Jackson statues.

“If people are taking up arms against your country, it makes you wonder about why they would ever erect monuments to them,” he said.

Though he is retiring, Toscano said he fully expects either of the Democrats seeking his seat — UVa professor Sally Hudson and City Councilor and monument lawsuit defendant Kathy Galvin — to continue his efforts to change the statute.

Regardless of what the Charlottesville Circuit Court ends up ruling in the case, Schragger said, it will doubtlessly be appealed to the Virginia Supreme Court and could drag on for years.

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Tyler Hammel is a reporter for The Daily Progress. Contact him at (434) 978-7268, thammel@dailyprogress.com or @TylerHammelVA on Twitter.

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