Legalese — Confederate Monuments

Like just about everyone who has spent more than ten minutes south of the Mason-Dixon line, I have an opinion about the propriety of Confederate Monuments in public spaces.  I am not here to tell you what my personal opinion is, however.  As a judge, it is inappropriate for me to give my personal opinion on political topics, especially hot-button ones.

It is appropriate, however, for me to tell you what the law says. 

I can’t speak for the law anywhere but in my home state of Georgia, the only place in which I am licensed to practice law.  In the State of Georgia, the term ‘monument’ is defined as “a monument, plaque, statue, marker, flag, banner, structure name, display, or memorial constructed and located with the intent of being permanently displayed and perpetually maintained that is” among other things, “[d]edicated to, honors, or recounts the military service of any past or present military personnel of this state; the United States of America or the several states thereof; or the Confederate States of America or the several states thereof.”  See O.C.G.A. 50-3-1 (b)(1)(B).  So, Georgia law specifically includes Confederate monuments in its protections.

O.C.G.A. 50-3-1(b)(2) and (3) then go on to say that publicly owned monuments can’t be mutilated, defaced, defiled, or abused, nor can they be relocated, removed, concealed, obscured, or altered: however, they can be preserved, protected, and interpreted.  There’s a lot of legalese in this language, but the bottom line is this: Confederate Monuments are protected by state law.  You can’t take them down or relocate them in any way except to protect and preserve them. 

Lest you think this law is a throwback, it isn’t.  It was reaffirmed in the Georgia Legislature in 2019 in Senate Bill 77.   This means that the legislature looked at it as recently as last year and thought that this law needed to remain a part of Georgia’s laws.  Since we are a republican democracy, the legislative body is made up of legislators elected by the people of Georgia: it would follow then, that the people of Georgia wanted its legislators to vote this way to keep this law in.  If you disagree, contact your legislator (your representative and/or senator) and let him or her know.  They are supposed to act in the way that their constituency wants them to act, and they only way they can know that is if you tell them. 

It seems to me, then, that Georgia law is clear.  There may be some room for interpretation if they are going to be moved to a museum to be displayed, but not simply removed and destroyed or hidden.  There are three separate and distinct branches of government: the legislature makes and changes the law; the judiciary interprets the law; and the executive branch enforces the law.   Since O.C.G.A. 50-3-1 is pretty clear, unless you are challenging the constitutionality of the law itself, if you want to remove Confederate Monuments on publicly held land, the way to do it is through the legislature, not through the courts or direct action. The law would have to change.

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

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