SC Heritage Act lawsuit protecting Confederate monuments sparks top Republican fight

A key part of the 20-year-old South Carolina law that makes it near impossible to take down Confederate and segregation-era monuments is the requirement that it would take a two-thirds vote — a supermajority — by each chamber in the General Assembly to make any changes.

But in the latest filing before the state Supreme Court in a lawsuit that challenges the state’s Heritage Act, South Carolina Attorney General Alan Wilson says the act’s provision that requires a supermajority in the 124-member House and in the 46-member Senate is unconstitutional.

Wilson’s challenge to the supermajority conflicts with filings in that lawsuit by the state’s other top Republicans — Gov. Henry McMaster, state Senate President Harvey Peeler of Cherokee and House Speaker Jay Lucas of Darlington.

Peeler and Lucas claim the supermajority requirements are constitutional, and McMaster says he defers to them. Wilson generally supports the Act and the General Assembly’s power to approve monument changes -- he is only objecting to the provision requiring a supermajority for changes.

McMaster, Peeler and Lucas are defendants in the lawsuit, now pending in the state’s highest court. Wilson is not a party in the lawsuit but a “friend of court” — an interested party making his position known.

The lawsuit, filed in July, asserts that the entire Heritage Act is a violation of home rule — the power of local governments to set their own policy — and that the act’s supermajority provision is an unconstitutional power wielded by a past General Assembly over future legislatures.

The lawsuit in the Supreme Court was filed by Columbia City Councilman Howard Duvall; Jennifer Pinckney, the widow of the late state Sen. Clementa Pinckney, D-Jasper, who was among nine Black churchgoers slain by white supremacist Dylann Roof; and former state Sen. Kay Patterson, D-Richland, who fought for civil rights in the 1950s and 1960s.

Whatever the Supreme Court does on the legal front, the split between Wilson and three of the state’s other top Republicans is a rare political schism among South Carolina Republicans, who rarely break ranks when it comes to protecting monuments honoring the Confederacy.

Led by South Carolina, the Confederacy was a league of Southern states that seceded from the Union in 1860 to protect the institution of slavery. At the time, South Carolina had some 400,000 enslaved Black people, according to U.S. Census records.

In their lawsuit, Duvall, Pinckney and Patterson allege that the Heritage Act unfairly requires future legislatures to meet an almost impossible standard of a two-thirds majority in each chamber in order to remove or change war monuments and other memorials in public spaces.

The Heritage Act also violates “Home Rule” laws that give local towns and counties control over local matters, the lawsuit says, adding, “this undermines the very essence of democracy.”

“The Act seeks to limit local government decisions, bind the current and future General Assemblies, and prevent the people of South Carolina from changing prior government decisions regarding who or what is honored and celebrated by public monuments, memorials and names of public places,” the lawsuit says.

The lawsuit points out that although the Heritage Act binds future legislatures to come up with a 66% vote to move most historical monuments or change historical names of any streets, bridges or other structures, the law itself only gathered 60% support in the House when it passed in 2000.

At that time, the Heritage Act was a crucial part of a compromise that moved the Confederate flag from the top of the State House dome to a position of honor in front of the State House.

One the law’s most ardent backers was former state Sen. Glenn McConnell, R-Charleston, who was known to participate in Civil War reenactments. McConnell and others insisted the Confederate flag was a symbol of “heritage” and not hate toward or enslavement of Black people. Critics derided that view as sanitizing the historically-documented injustices of slavery and Jim Crow.

But in 2015, shock and revulsion over the massacre of nine Black parishioners at a Charleston church by Roof, who worshiped the Confederate flag, produced a two-thirds vote in both the House and Senate to remove the flag entirely.

The lawsuit was filed seven weeks after the death of George Floyd, a Black man, who died in late May while in the custody of white police officers in Minneapolis. His death was captured on a bystander’s phone and went viral, sparking widespread protests and new consciousness about how Black men and women are treated by police.

The video also renewed a conversation around the country over controversial monuments, particularly those honoring Confederate soldiers or symbols. In South Carolina, beyond the statue, protests popped up at colleges in Columbia, Clemson and Winthrop, demanding school leaders there remove monuments or change building names associated with the Confederacy or white supremacy.

The lawsuit over the Heritage Act, filed by Columbia attorney Matthew Richardson and state Sen. Gerald Malloy, D-Darlington, refers to those protests, saying that “the Act’s deficiencies” have been illuminated in recent weeks “as citizens and local governing bodies have attempted to make changes to monuments and other historical landmarks.”

Here are excerpts from filings in the Supreme Court:

▪ Wilson’s filing says the Heritage Act “touches virtually every community in the state” and asserts the supermajority requirement enacted by the Legislature in 2000 is an “unconstitutional infringement upon the power of future Legislatures to legislate as they deem necessary or appropriate by majority vote of each house.” However, Wilson’s filing asserts the Legislature does have the power over historic monuments by means of a simple majority vote.

▪ Peeler’s filing says that in 2000, when the General Assembly passed the Heritage Act in emotional circumstances where there were deep divisions in South Carolina about whether the Confederate flag should be removed from the top of State House, the supermajority provision was a necessary compromise that provided assurances to all parties that “the deal could not be undone without broad support among the members of the General Assembly.”

Peeler’s filing also says, “The compromise falling apart is not good for our State. The Court should keep the supermajority requirement in place ... allowing the General Assembly to keep its focus on solving other pressing problems that the State is facing.”

▪ McMaster’s filing says the governor is not involved in the controversy and, since the matter is a legislative issue, the court should not “referee a debate” about the General Assembly’s powers. In any case, McMaster said he would support positions taken by Peeler and Lucas.

▪ Lucas’ filing says the state constitution gives “full legislative power” to the General Assembly and that body has the authority to limit changes to memorials, monuments and other structures. Moreover, the General Assembly is the “ultimate decisionmaker” when it comes to whether to change something about memorials or monuments or the names of streets.”

Current “social unrest” should not play a role in the case, Lucas’ brief says.

“They (the plaintiffs) do not like the Heritage Act. But that does not make the Heritage Act unconstitutional.”

Heritage Act ‘warrants a discussion’

The state Supreme Court is not the only forum where changes to memorials are being contemplated.

State Rep. Seth Rose, D-Richland, filed a bill ahead of the Legislature’s January return to set up a committee to examine what changes, if any, should be made to existing monuments on State House grounds.

Rose said one of his main concerns is the statue of “Pitchfork” Ben Tillman — a former S.C. governor and U.S. senator — that stands in front of the State House. In his day, Tillman was one of America’s most outspoken and violent white supremacists. In those positions, Tillman advocated not only for lynching, but killing any Black person who sought equal rights with whites.

Tillman’s racism is omitted from plaques honoring his public positions, and Rose said he would like lawmakers to consider at least doing something to put the statue in context for anyone who walks by it.

“It warrants a discussion,” Rose said. “If you are going to have a statue on State House grounds, that is obviously a huge honor. But the statue of Tillman doesn’t accurately depict what he stood for as a man or a person.“

Debate over Confederate-era memorials also surfaced in Washington this year.

In the last week, President Donald Trump vetoed the popular annual military policy bill, in part on the grounds that a section of the bill directs the military to begin the process of removing the names of bases named for Confederate generals. The measure, passed with bipartisan support, would include well-known bases such as North Carolina’s Fort Bragg, named after Confederate Gen. Braxton Bragg. By some accounts, Bragg was one of the South’s worst generals.

The U.S. House voted this week to override Trump’s veto. The Senate is expected to do the same.

In South Carolina, no quick decision on the lawsuit by the state Supreme Court is expected.

Most lawsuits are filed in circuit court and find their way into the Supreme Court through appeals. In this case, the high court has agreed to hear the matter in what is called “original jurisdiction” without it going through lower courts.

Rose, who said he has been criticized for trying to “change history,” remains hopeful the Legislature will also step in.

A protest against Tillman’s statue has been planned for Jan. 12, the same day the General Assembly returns to work.

The debate over Tillman is not about “changing history,” Rose said.

“It’s about who or what we choose to honor on public ground,” he said. “History can never be changed.”

This story was originally published December 30, 2020 at 1:18 PM with the headline "SC Heritage Act lawsuit protecting Confederate monuments sparks top Republican fight."