Virginia's “Memorials for war veterans” Statute

As Virginians debate the future of Confederate war memorials, we must not forget that we remain a Nation and Commonwealth governed by laws, not men.  The rule of law is the foundation of our democracy.  We may not always like our laws, but we must follow them until they are properly changed.

Virginia has a statute entitled “Memorials for war veterans” that prohibits counties and cities from removing or interfering with such memorials—including those commemorating Confederate veterans.  Enacted in 1904, the law now covers memorials honoring veterans from all American wars or conflicts, from the Revolutionary War (and even conflicts before independence) to the War on Terror and Operation Iraqi Freedom.  Although the law originally applied only to counties, the General Assembly extended it to cities such as Charlottesville in 1997.
The law does two important things.  First, it confirms that Virginia localities have the power to erect monuments and war memorials to veterans.  Second, it makes it illegal for local authorities (or anyone) “to disturb or interfere with any monuments or memorials so erected,” or to prevent local citizens from taking proper care of the monuments.  According to the law, this includes removal of the memorial itself.  The law also empowers concerned citizens to sue to prevent a locality from illegally removing a war memorial.  This is exactly what happened in Charlottesville regarding the Lee statue.
Some, including the City of Charlottesville, have argued that the Virginia war-memorial statute does not apply to the Lee statue and others like it.  But their arguments do not fairly read the war-memorial law.  They claim that, because the law did not extend to cities until 1997, it does not apply to statues erected before then, such as the Lee statue erected in 1924.  According to this argument, applying the law to the Lee statue would be impermissibly “retroactive.”  But regulating how cities treat Confederate statues in the future is not “retroactive.”  The law does not govern past conduct—it imposes a duty on localities going forward.  Opponents of the Lee statue also argue that it is not a true “war memorial” covered by the law because the statue commemorates only one individual veteran.  But even Mark Herring, in an August 2015 Attorney General opinion, agreed that the war-memorial law obviously covers statues to particular veterans as well.
Absent the General Assembly taking action to repeal the law, it remains in effect and as with any Virginia law should be defended by the Attorney General of Virginia.  And, as a result, localities do not have the power to remove Confederate war-memorials without the General Assembly’s consent.