AG Herring asks Supreme Court to reject an appeal to keep the Lee statue in place

On January 27, 2021, Attorney General Mark R. Herring formally asked the Supreme Court of Virginia to reject an appeal that seeks to keep the state-owned Robert E. Lee statue on Monument Avenue. Attorney General Herring has prevailed in every legal challenge that has sought to block the removal of the statue, but an injunction remains in place that bars its removal.

Although the plaintiffs waited until the last possible day to file their appeal, Attorney General Herring has filed his brief in opposition just two days later, underscoring his commitment to resolving this matter and removing the Lee statue as quickly as possible.

“It is time for this obstruction to end. The courts have carefully considered all the claims and arguments and found that removal of the Lee statue is lawful, and in my opinion, a necessary step as we seek to move forward as a united Commonwealth,” said Attorney General Herring. “The trial court found, as we have stated from the beginning, that the Lee statue was raised against a backdrop of white supremacy as part of a concerted propaganda campaign to recast the Civil War and obscure the true purpose of the Confederacy. This statue and its message are incompatible with the Commonwealth we want to be, and it is time for it to come down.

“Even though we have defeated every single challenge to the statue’s removal, it nevertheless remains in place because of an injunction that we believe is improper and should be dissolved. Otherwise, this handful of individuals will continue to impose their will over the will of the people of Virginia as expressed through their General Assembly and their governor.”

In his brief, Attorney General Herring urges the Supreme Court to reject the appeal outright, or if it chooses to hear the appeal, to do so as quickly as possible. “Any other course of action would allow plaintiffs to continue to win by losing and force the Commonwealth of today to display yesterday’s symbol of racism and oppression,” he writes. “By proceeding as slowly as possible and inviting this Court to do the same, plaintiffs seek to maintain a state of affairs that gives them everything they could have possibly hoped for in the underlying suit. But plaintiffs have already had their day in court and lost, and the petition for appeal provides no basis for overturning the circuit court’s conclusion that legislation recently passed by the General Assembly (the 2020 law) destroys the predicate for all the plaintiffs’ claims.”

Attorney General Herring’s brief also recounts the highly unusual nature of this lawsuit, including that this suit was filed three times, dropped twice, and then an injunction was granted to keep the statue up even though the judge found that its removal was lawful.

On October 27, 2020, Richmond Circuit Court Judge W. Reilly Marchant ruled in favor of Attorney General Herring, Governor Northam, and the General Assembly in finding that the Lee statue’s removal was lawful.