SC Supreme Court set to weigh whether controversial Heritage Act is unconstitutional

Maayan Schechter
·4 min read

Challengers who question the constitutionality of South Carolina’s controversial 2000 law that protects some historic monuments and statues will finally have their day in court this week when the state’s Supreme Court will for the first time weigh whether the law should be overturned.

The S.C. Supreme Court will hear arguments at 10:30 a.m. Tuesday over a lawsuit challenging the constitutionality of the Heritage Act, passed more than 20 years ago as a compromise that brought the Confederate flag down from the State House dome to a flagpole on the Capitol grounds where it flew until removed in 2015.

The law also prevents the removal or alteration of Confederate and other war memorials and monuments as well as other public structures and places named for historical figures, unless lawmakers pass a law with two-thirds support in both chambers.

The lawsuit argues that the Heritage Act unlawfully binds future state legislatures to meet a near impossible standard of a two-thirds “super majority” in the House and Senate chambers to remove monuments, memorials and statues in public spaces.

It also argues that the General Assembly’s law overrides so-called “home rule” of local governments, which, in some cases, have decided unilaterally to remove controversial statues without the Legislature’s approval.

The office of S.C. Attorney General Alan Wilson wrote last year in an opinion, which is not legally binding, that the two-thirds rule is likely unconstitutional. But Wilson, a Republican who now chairs the Republican Attorney General Association, added that the Legislature does have the power to adopt changes to historic monuments, statutes and memorials.

”The Heritage Act touches virtually every community in the State. Historic monuments, memorials, the naming of streets and roads, all preserved by the Act, abound everywhere,” Robert Cook, Wilson’s top opinion writer, wrote to the S.C. Supreme Court in a letter last August asking for the high court to hear the case.

Cook continued: “Enacted in 2000, as part of the compromise to remove the Confederate Battle Flag from the Statehouse Dome, the Act is today constantly in the public eye. Many monuments, statues or memorials, erected long ago in a different time and place in the State’s history, such as the (Ben) Tillman Monument, are now highly controversial as many citizens feel offended by what a particular monument or memorial may symbolize.”

State lawmakers’ past attempts to address the law in the State House have failed.

The last — and most successful — effort to debate the Heritage Act came in 2015, when the Legislature voted to remove the Confederate flag from the State House grounds after a white supremacist, who had posed in photos with the divisive banner, murdered nine Black church parishioners inside a Charleston church in June 2015.

But in the past year, the Heritage Act’s opponents have found renewed life in their cause to challenge the law after the murder of George Floyd by a Minnesota police officer and the subsequent Black Lives Matter protests nationwide that turned attention back to memorials and monuments in the state dedicated to historic figures with racist legacies.

In response to public outcry, state universities also have taken requests to remove controversial names from state-owned buildings, for example Ben “Pitchfork” Tillman, whose last name graces buildings at Clemson and Winthrop universities. A former state governor and U.S. senator, Tillman also was a segregationist who was a member of an all-white, post-Civil War militia responsible for lynching Black people.

The Supreme Court will hear the challenge on Tuesday on behalf of Columbia City Councilman Howard Duvall, former state lawmaker Kay Patterson and Jennifer Pinckney, widow of Clementa Pinckney who was murdered at the Charleston church in 2015.

Defendants are Republicans Gov. Henry McMaster, Senate President Harvey Peeler, of Cherokee County, and House Speaker Jay Lucas, of Darlington County.

Peeler, in his filing to the state’s high court last August, urged the court to leave the issue up to the Legislature, not the justices.

“A decision by this court that (the Heritage Act) is unconstitutional could result in chaotic scenes unfolding across the state, with an untold number of statues ripped from their pedestals and numerous streets, buildings, bridges and other structures renamed,” he wrote, calling the law a “political matter” more appropriately handled by lawmakers.

“The only way to ensure that the wide range of views on this issue will be heard is to keep it in the political arena to allow for thoughtful debate that is reflective of the state as a whole.”

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