Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
The legal decision was monumental both for its dismantling of a pro-Confederate law and the implications for cities’ rights in the face of states’ rights.
Long before Donald Trump proclaimed that there were some “very fine people, on both sides” of the alt-racist eruption in Charlottesville, Virginia, in 2017, Alabama Lieutenant Governor R.M. Cunningham gave similar equivocations at the 1905 dedication ceremony for the Confederate Soldiers and Sailors Monument that was being installed in Birmingham’s Linn Park. Cunningham told the gathering that “the characterization of either side [of the Civil War] as rebels is false” because “both parties were loyalists and patriots.” The then-mayor of Birmingham Mel Drennen cosigned and said that his city’s new Confederate monument “memorialized … a cause that will ever remain fresh in the memories of our Southern people.”
The monument is a sandstone obelisk that stands 52-feet tall—higher than the average telephone pole—on a concrete foundation laid during an 1894 Confederate veterans reunion. Little did those vets know that in a few decades Birmingham would become the epicenter of a civil rights movement that explicitly disavowed the Confederate and Jim Crow causes the monument stood for.
In 2017, Birmingham would join a wave of cities that decided Confederate monuments were no longer welcome, largely in response to the Charlottesville debacle. Birmingham’s solution was to wall off the monument with large planks of plywood, obscuring it from public view. However, also that year Alabama lawmakers passed the Alabama Heritage Preservation Act, which forbade Birmingham or any city in the state from removing or altering Confederate monuments that had stood for more than 40 years.
The act will not be enforced. This week Alabama circuit court Judge Michael Graffeo not only ruled that Birmingham had the right to block off the monument, but also invalidated the Alabama Heritage Preservation Act by finding it unconstitutional. The ruling stems from a lawsuit filed by Alabama’s Attorney General’s office that argued that the city’s barricading of the monument was a violation of the act. Judge Graffeo’s decision on the matter is itself monumental, as much for its dismantling of a pro-Confederate law as it is for what it says about the rights of cities in the face of states’ rights.
“Yesterday’s ruling is the first time a court has concluded that a state cannot force a city to maintain a Confederate monument that its citizens find abhorrent,” said Rhonda Brownstein, legal director of the Southern Poverty Law Center, which filed a brief on Birmingham’s behalf. “The Circuit Court ruled that Birmingham has a constitutionally protected right to decide for itself what messages it wants to convey to its citizens and to the world. Alabama's majority-white legislature cannot force Birmingham, a majority-black city, to maintain a monument to white supremacy.”
Birmingham first began exploring taking down the monument in 2015, when then-Mayor William Bell asked the city’s attorneys and its parks and recreation board to investigate a legal path towards removal. It seemed like a safe time to do this given that Alabama’s then-Governor Robert Bentley had taken down Confederate flags from the state’s capitol grounds. However, the state legislature immediately began crafting legislation to ensure that other Confederate symbols would not meet the same fate. In May 2017, Bentley’s successor as governor, Kay Ivey, signed the Heritage Preservation Act into law. The act’s supporters intended it to obstruct Birmingham’s plans to obstruct the view of the Confederate monument in one of the city’s public parks. The city built the wall around it anyway, triggering the state’s lawsuit against the city.
During that case, the court put several questions before the parties, primarily concerning whether a city’s display or destruction of a monument on public grounds constitutes “government speech,” and whether cities enjoy an independent right of free “government speech.” The court also asked to settle the matter of whether cities enjoy a fundamental right of equal protection and due process, the way private individuals do.
The state of Alabama argued that the answers to all of these questions is no because cities fundamentally have no rights. In its legal brief, Alabama’s lawyers told the court that cities “lack standing to assert [that] state statutes violate their rights under the U.S. Constitution because they are creatures or instrumentalities of their states of origin.”
Alabama Judge Michael Graffeo disagreed in a 10-page ruling that he filed late Monday night, just before midnight. The next day he stepped down from the bench into retirement, taking down the Confederate monument protection law with him. The judge ruled not only that the “city has a right to speak for itself,” but also that by barring Birmingham’s ability to hide the Confederate monument, the state was essentially forcing a majority-black city to broadcast an explicitly anti-black message in a public setting. Reads the ruling:
The practical ramification of the STATE’S position is that the ACT renders pro-Confederate speech immune from a local political process that rejects a message of white supremacy. … the democratic process here flew into motion after the people of Birmingham witnessed race-based violence across the South and decided, through their elected officials, to reject a message of African American inferiority. Under the ACT, however, the people of Birmingham cannot win.
Neither would it be enough for Birmingham to put up other monuments or signs that criticize the Confederate monument, which is an often suggested alternative to removal—”the CITY has the right to disassociate from a pro-Confederacy message entirely,” wrote Graffeo.
The judge affirmed Birmingham’s right to craft its own city narrative, something that has lately proved challenging for the “cradle of civil rights” that currently has one of the highest poverty rates in the nation. In 2016, when the city of Birmingham passed an ordinance to raise the minimum wage to $10.10, the Alabama legislature voted the following day to pre-empt and reverse the wage ordinance. (The city’s lawsuit against the state’s preemption is still pending). Meanwhile, Birmingham has been trying to futurize, or at least modernize its woeful public transit system in one of the few states that historically has not funded public transport. The state seems unwilling to allow the city to help its most oppressed residents, but a court has ruled that it must at least get out of the way of the city’s efforts to erase the symbols of that oppression.
Alabama’s Attorney General Steve Marshall said he would appeal the ruling, which essentially continues the fight to affirm “both sides” of the Civil War as honor-worthy, even if that means dishonoring Birmingham’s black citizens and civil rights bonafides. Alabama has proudly touted “states’ rights” in defense of many policies that today stand as indefensible, from slavery to legal segregation. That defense is now yet another lost cause, at least for this week, as a city’s civil rights have been recognized.