Judge keeps legal challenge to Heritage Act alive

This plaque honors World War II soldiers in the city of Greenwood by listing them as “colored” or “white.” A similar plaque honors World War I soldiers on the other side of the monument, which was erected decades ago by American Legion Post 20. A circuit judge denied a motion to dismiss a lawsuit against the state, filed by several Greenwood residents, that claim the S.C. Heritage Act limits their First Amendment right to replace the segregated plaques with something more inclusive.

COLUMBIA — A move by the state of South Carolina to throw out a civil rights case involving a segregated war memorial and top state leaders was denied by a circuit judge Friday.

Judge Frank Addy Jr. said the case by five Greenwood residents, some associated with the American Legion Post 20, challenging the state’s controversial Heritage Act will go forward.

The group’s lawyer said this is a necessary step for the group’s attempt to replace plaques on a monument listing the dead soldiers from the world wars as “colored” and “white.”

“Although the defendants may allege plaintiffs are without sufficient standing, this is merely an allegation and is insufficient to dismiss the case at this stage,” Addy wrote.

The move for dismissal was filed on behalf of defendants Attorney General Alan Wilson, Lt. Gov. Henry McMaster and House Speaker Jay Lucas.

The ruling continues a court battle over the constitutionality of the Heritage Act. Passed in 2000, the law was seen as a compromise to moving the Confederate battle flag from the Statehouse dome to a nearby Confederate soldier monument.

Now with the flag removed entirely from Statehouse grounds, even Addy found the law a bit dated at last month’s hearing in his Greenwood courtroom.

“We’re dealing with an ironic situation where the Heritage Act was passed in order to protect the flag that is of course no longer on the Statehouse grounds,” he said.

The flag was taken down in July after nine black parishioners were killed by an avowed white supremacist at Emanuel AME Church in Charleston the month before.

Similar to the flag, which flew on the Statehouse grounds for more than 50 years, the American Legion Post 20 erected the war monument decades ago in the heart of downtown Greenwood. However, the dated language does not match the progressive changes of the city just 90 minutes west of Columbia. So locals, with the blessing of the city council and American Legion, headed up a successful campaign to replace the bronze plaques.

But they hit a snag.

The law requires two-thirds approval of the 170-member General Assembly, which is not eager to revisit changes to controversial monuments, buildings or roads on public property anytime soon.

“The South Carolina House of Representatives will not engage in or debate the specifics of public monuments, memorials, state buildings, road names or any other historical markers,” Lucas, R-Hartsville, said after a marathon debate in July.

Legislative attempts to allow for Greenwood’s exception to the law hit a roadblock earlier last year and prompted the group of five to file suit in May.

The hearing last month was the first significant movement since then. Key challenges by the state were whether the Greenwood group could even bring the case and if the court should intervene with the legislative process.

“What this case really involves is a political dispute, a concern about what the Legislature has done,” lawyer Tracey Green, who represents Lucas, said during the hearing. “That doesn’t convert that into a constitutional dispute this court can adjudicate.”

With the decision out of the way, Charleston lawyer Armand Derfner, who represents the Greenwood group, said he’ll make his next move shortly.

“A motion to dismiss is routine, so getting past it is a necessary first step, but doesn’t point to one outcome or another,” Derfner said Sunday. “As to when, that’s somewhat up in the air, too, depending a lot on how the two sides choose to proceed.”