This will be, for a great many people, an unpopular ruling on an unpopular law.
But a judge’s decision that Charlottesville’s Confederate statues are protected under Virginia law should come as no surprise.
Where does that leave the Charlottesville community?
Let’s be clear: We are not saying that the law is admirable, only that its language has been reasonably ruled to encompass the Charlottesville situation. That ruling, while disappointing to many, cannot come as a shock.
Indeed, the law undoubtedly was enacted and updated by the General Assembly to prevent just such interventions as Charlottesville sought to accomplish when City Council voted to remove the Robert E. Lee statue.
The law is explicit. The relevant portion says:
“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: … Confederate or Union monuments or memorials of the War Between the States (1861-1865)… . 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 … monuments or memorials ...” (emphases added) .
There you have it. The statute says that localities can’t “disturb” or “interfere” with war memorials and monuments, and then it defines disturbance or interference as including removal — precisely the action authorized by City Council.
The council’s vote was challenged in a lawsuit, to which the recent ruling is a partial answer.
At issue was whether the city statues constituted war “monuments or memorials” under the law. If they were not, then the law would not apply and the statues could be removed.
But an objective evaluator would have to see these statues as war memorials. They clearly were erected to memorialize two military leaders from a U.S. war — revealingly cited in the legislation by its Southern name, the War Between the States.
Circuit Judge Richard E. Moore also cited an obvious within contradiction claims that the statues do not qualify as war memorials:
If the statues weren’t associated with the Confederate side of the American Civil War, if they weren’t memorials to two Southern generals of that war, they would not be controversial. The very reason they are despised by many is that they represent — even glorify — the leaders of a war of rebellion that, as a matter of policy, upheld the inhumane institution of slavery.
No matter how much revulsion modern men and women feel toward the Confederacy and its prosecution of that war, the law now on the books protects the memorials to that war.
Or, at least it does unless and until a higher court overrules the circuit decision and successfully justifies a different conclusion.
The Charlottesville ruling might well be appealed to a higher court.
But whether that happens or not, the law needs to be revised to accommodate prudent removal — though not destruction — of statues.
We understand the difficulties, both practical and political, of such an action.
Public opinion is changeable, swaying from one side to another — and therefore not necessarily a reliable basis for decisions such as the creation or removal of memorials that are supposed to last for generations.
However, to say that a memorial can never be moved or removed is an overly severe standard. There may be times when a monument legitimately should be moved to a new location.
Such removal should be difficult, to prevent irrational, knee-jerk decisions, but it ought not be impossible.
Politically, even just amending the law will be difficult. But the General Assembly should put its best minds to revising the statute to that end.