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Legal Challenges to Confederate Monuments Attempt What Others Cannot

Statues and Statutes

Last month, two individuals were arrested and charged with vandalizing a statue on the Battery dedicated to the “Confederate Defenders of Charleston.” The technical charge was “damage to real property,” a likely misdemeanor that will carry no jail time. The incident was notable especially in light of discussions in this community about the propriety of Confederate-related monuments (particularly the Calhoun monument in Marion Square) and the constitutionality of the state’s Heritage Act, which protects these monuments.

The charge and the penalty likely would have been the same if the two individuals had spray painted grafitti on the side of City Hall or broken windows at the city’s Visitor Center. A “damage to real property” charge does not distinguish between politically-motivated vandalism and vandalism for the hell of it.

To be sure, this particular statue was not vandalized just for the hell of it. There is little doubt that vandals chose this target as a clear expression of disapproval of Confederate monuments erected all over the state. This statue, dedicated to the “Confederate Defenders of Charleston,” begs several questions: Were the soldiers to which this statue was dedicated really defending Charleston? Didn’t the South fire the first shots on Fort Sumter? Why is a statue dedicated to the losing side still erected despite defeat? Is it not fair to consider the firing on Fort Sumter a treasonous act?

These are all legitimate questions, and questions that any objectors to these monuments could legitimately raise. They all sidestep the real reason that many of these statues were raised, as an expression of white supremacy at times such as the turn of the century and after Brown v. Board of Education when the civil rights movement was just getting started.

Vandalism is not the ideal way to protest the continued presence of these statues and monuments, but the sentiment is understandable. People who feel strongly about the messages these statues convey are limited in how they can express their disapproval about them. Imagine statues venerating George Custer being erected on reservations inhabited by Native Americans. It is not difficult to surmise why different races or ethnic groups might feel very differently about statues of historical significance being placed in prominent areas where they live. This was the reason statutes were utilized in the first place.

There are various legal challenges presently ongoing seeking to challenge the Heritage Act, which protects war monuments across the state. The state’s Heritage Act makes it illegal to remove monuments without first receiving a two-thirds majority in both chambers of the General Assembly. There is an ongoing federal case questioning the constitutionality of this law, as well as the manner in which it is being applied. The chances of a federal judge overturning this statute is a lot more likely than the South Carolina legislature voting to take down Confederate monuments any time soon, or that vandalism of a monument is going to lead to a decline in public support for such monuments.

Removing Confederate monuments from this state will be an uphill battle, as evidenced by the painstaking struggle to remove the Confederate flag from on top and in front of the Statehouse. The hope is that the legal attempts to achieve this will succeed in a way that illegal means never could.

Any discussion of the Charleston Rifle Club’s disappointing choice to double down on its racially exclusionary ‘blackball’ policy must begin with the acknowledgment that private clubs and organizations have the absolute right to admit or deny whomever they choose. This entitles said groups the right to exclude women, blacks, gays, Jews, or any other classification of people they see fit. As private organizations, this is their constitutional right and prerogative.

Whether one agrees these are good policies to have, the nomination of Dr. William Melvin Brown III as a potential member to the Charleston Rifle Club gave the club an excellent opportunity to demonstrate that its membership policy was not racially exclusive, despite its historical reputation. Its rejection of that opportunity, first in denying Brown membership and again in affirming the process that denied him, confirms that it is indeed a “whites-only” membership club that embraces that status even under public scrutiny.

According to club member Jimmy Bailey Jr. in a recent Post and Courier article, a majority of club members (60 percent) wanted to eliminate the initiation process embedded in the by-laws that allowed members to anonymously exclude applicants for any reason they desired. Unfortunately changing the bylaws requires a supermajority vote, which the members in favor of change could not muster.

When the Rifle Club membership voted last week not to change its bylaws, it was a de facto embrace of a discriminatory policy. While not exclusionary on its face, the vote was essentially a proxy on whether the club would continue to exclude black applicants.

Some sympathy is due to the 60 percent that were in favor of change; they joined a club that by design was created with exclusionary rules that were very difficult to change. Think of the law our state legislature passed making it incredibly difficult for future generations to remove Confederate monuments from public properties around the state.

The criticism then should not be that the Rifle Club must be a racist organization, although its retention of this policy may lead some to make this overly broad assumption. The lament should be that under the intense spotlight of city, state, and even national attention (and maybe because of it), a significant portion of club members would still rather retain a discriminatory membership policy, than change the bylaws enabling that policy. Put more simply, they treasured their ability to maintain their own traditions over opening the door to a rule change that might one day have allowed a black member.

What does it say about our community that we still accept and even patronize clubs that stubbornly adhere to racist traditions? And where does this choice leave this new generation of club members who advocated for their friend and clamored for change?

In a much, much better place. Not only has an important dialogue begun, but now there is no question about where the club and other members stand on a very important issue. There are several other clubs in Charleston that only have white members (and quite a few that only have black members as well). Many churches of both races are the same way. But in many institutions, the color line has never been tested, and were someone of a different race to attend or apply, they would be warmly received.

Amazingly, according to several members of the club who sponsored Brown, he was the first black applicant ever to apply for membership at the Rifle Club and thus the first to be rejected. Whether this is true, if there was a question before on where the club stood on matters of racial exclusivity, there isn’t one any longer.

The larger question for many, particularly those in pursuit of racial justice, inclusivity, and equal opportunity for all, is: Does Charleston aspire to be a racially inclusive society of the type envisioned and described by Dr. Martin Luther King? Or on the anniversary of the Emanuel Nine massacre, do we continue to condone, excuse, and defend those who adhere to racist or discriminatory traditions? Do we shrug our shoulders in the face of continued bigotry when we see it, or do we speak out and continue to advocate for change?

A significant number of Rifle Club members may have written the latest chapter in this ongoing debate, but it need not be the final one. If the moral arc of the universe truly bends towards justice, as Dr. King once wrote, then it is only a matter of time before the individuals who advocated for Melvin Brown, supported his membership, and voted for change prevail in their very worthwhile cause.

We owe it not only to them but to all who are discriminated against in our presence to continue the dialogue and continue striving for the more-inclusive community we aspire for Charleston to be.

This article, written by Dwayne Green, first appeared in the Charleston City Paper on July 10, 2019. View Dwayne’s full archive of articles at the Charleston City Paper as a guest columnist.

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