SC Supreme Court picks apart 2000 Heritage Act law as they question constitutionality

The South Carolina Supreme Court for the first time heard arguments to do away with a controversial 2000 state law protecting some of the state’s most controversial monuments and statutes, 21 years after lawmakers passed the law as a compromise to remove the Confederate flag from atop the State House.

At the urging of the Republican attorney general, the state’s high court took up a lawsuit challenging the law filed by three Black South Carolinians, including Jennifer Pinckney, the widow of the late state Sen. Clementa Pinckney, who was murdered with eight others by a white supremacist during a Bible study at a Charleston church in 2015.

The oral arguments occurred the same day Tuesday as a court hearing started for that white supremacist, Dylann Roof, who is appealing his federal death sentence, and one year after George Floyd, a Black Minnesota man, died in police custody, sparking outrage across the nation including in South Carolina, where protesters again called for monuments protected by the Heritage Act to be removed from the public eye. Derek Chauvin, the white police officer who knelt on Floyd’s neck for several minutes before he died, was convicted last month of murdering Floyd.

The five Supreme Court justices took turns Tuesday picking the law apart, questioning whether a two-thirds vote requirement to alter or change a protected monument, memorial or statute was constitutional and asking why the specific wars and groups of people singled out for protection were chosen over others. They also spent time debating whether a provision in the legislation that would uphold the Legislature’s power even if the court found the vote threshold unconstitutional could itself withstand a constitutional test.

“If this lawsuit had been filed in the fall of 2000, I don’t think anybody would raise the question of ripeness. We’d simply be talking about whether or not the General Assembly can enact an unconstitutional statute,” said Associate Justice John Cannon Few. “They can’t. And when they do, it’s ripe.”

The justices made no decision in a hearing that lasted about an hour.

The heart of the lawsuit filed by Pinckney, Columbia City Councilman Howard Duvall and former state lawmaker Kay Patterson questions the legality of the Legislature’s two-thirds “super majority” vote rule to change or remove and alter memorials, statutes and monuments since it unlawfully binds future state legislatures.

An attorney representing the plaintiffs said Pinckney’s interest focused on a memorial and statue honoring her late husband in Marion County, a dedication expected this summer, and for Patterson, it was his own legacy marker in Round O, his birthplace. Duvall’s interest, meanwhile, centered on his role as an elected official and the consequences of changing monuments at the city level.

That two-thirds vote, a hurdle hard to clear in the Legislature, makes it impossible for local governments and difficult for the state to alter, move or remove memorials, statues and monuments honoring the Confederacy and other wars as well as other public structures and places named for historical figures, including African Americans and Native Americans.

In a non-binding opinion last year, Attorney General Alan Wilson’s office wrote the two-thirds vote threshold is likely unconstitutional but said the Legislature is allowed to make changes to historic memorials, monuments and statues.

Clemson and Winthrop universities, both public schools, have asked lawmakers to revisit the Heritage Act so that it can remove the name of renowned racist Ben “Pitchfork” Tillman from its buildings. Those changes will require legislative approval, unlike in another example, when the city of Charleston removed its large John C. Calhoun statue from Marion Square. The statue was on private property and wasn’t subject to the Heritage Act, according to the Charleston Post and Courier.

“This was a legislative compromise. The Act’s main purpose was protection by preventing the current and future legislatures from making changes without a super majority requirement. It’s why it’s in each section of the subsequent sections of the Act. And it’s because the Legislature’s intent cannot be achieved without it, it’s what makes it essential,” Columbia attorney Matthew Richardson, representing Duvall, Patterson and Pinckney with state Sen. Gerald Malloy, D-Darlington, told the court Tuesday.

Put in simpler terms, Richardson said, “without the super majority requirement, there is no legislative compromise and there is no Heritage Act of 2000, and I don’t think that’s in dispute.”

Nearly every measure in the 2000 law was up for debate inside the courtroom Tuesday.

But the justices focused much of the time on the two-thirds threshold and whether the remaining law could be upheld if removed.

“And the Senate’s position is that the two-third’s requirement is constitutional, correct?” Associate Justice Few asked attorney Kenneth Moffitt, the Senate’s assistant clerk, who was representing the Senate in the courtroom.

“Yes,” Moffitt responded.

Then, Few said, “what legal principle do we look to as to where to draw the line, because if two-thirds is proper, why not make it 80%? Why not make it 90 or 100%, and we’ll just elevate the statute far beyond what the Constitution would ever require?”

The justices also questioned the Legislature’s intent when it wrote the law and asked why in the Heritage Act the General Assembly only decided to cover certain wars, African Americans and Native Americans but not Hispanic or Jewish Americans, for instance.

“I want you to explain to me why Jewish Americans would not be included, Hispanic Americans would not be included, Asian Americans would not be included. Why would they (not) be included in this, and if they’re not included, is this a legal, constitutional class?” Supreme Court Chief Justice Donald Beatty asked Columbia attorney Jim Gilliam, representing House Speaker Jay Lucas, R-Darlington.

Gilliam told the court he was not standing to suggest either of those classes had no heritage.

But, he said, “When we look at the classifications, what we have to ask ourselves is, ... is there a plausible reason why the General Assembly wanted to protect monuments to African Americans and Native Americans and not include others? And the answer is yes, you know, it’s not to minimize any other ethnic group, but the challenges that African Americans and Native Americans have faced in the state are just different.”

The two groups, Gilliam said, were “enslaved in this state. They have contributed to our state’s history in a remarkable way. And what you see with the Heritage Act is you see a constitutional desire to protect groups that have historically been vulnerable.”

The court on Tuesday also remarked on the plaintiff’s request to dismiss Republican Gov. Henry McMaster from the complaint, keeping Republicans Senate President Harvey Peeler, of Cherokee County, and House Speaker Jay Lucas.

On behalf of McMaster, senior counsel Grayson Lambert told the court the governor “believes he should not be a party to the court’s decision,” but added, “to the extent the governor is being dismissed, the governor does want to make clear that he believes the speaker and President Peeler are correct in their interpretation.”

If the governor is dismissed, Beatty responded, “he has nothing to say about this.”