Colin Kalmbacher, Law & Crime, September 2, 2021
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 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.”