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Lawsuit asks SC Supreme Court to find Heritage Act unconstitutional

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A confederate monument in memory of the Boys in Gray that was erected in 1910 on the square in Laurens. File/Andrew J. Whitaker/Staff

COLUMBIA — The widow of slain Emanuel AME Church pastor Clementa Pinckney is asking the state’s highest court to deem the Heritage Act unconstitutional, arguing the right to remove statues and other symbols on public grounds should be left up to local governments.

It’s the latest attempt to chip away at, or remove altogether, provisions within the controversial 20-year-old law that bars altering or relocating markers, street names and other tributes to past wars without legislative approval.

Overturning the act by law requires a supermajority within both chambers of the General Assembly, but a June opinion by state Attorney General Alan Wilson’s office said that threshold was unconstitutional — a claim seconded by attorneys.

“In recent weeks, the Act’s deficiencies have been illuminated as citizens and local governing bodies have attempted to make changes to monuments and other historical landmarks,” the suit claims.

Filed in S.C. Supreme Court, the complaint names Gov. Henry McMaster, Senate President Harvey Peeler and House Speaker Jay Lucas as defendants. Pinckney’s widow, Jennifer, signed on as plaintiff along with Columbia City Councilman Howard Duvall and Kay Patterson of Darlington, who served in the General Assembly from 1975 until 2008.

McMaster and Lucas had no comment on the lawsuit, according to their spokespeople. Peeler could not be reached for comment. 

Pinckney’s husband, who also was a state senator, was among nine killed by a self-avowed white supremacist in the June 2015 mass shooting at Emanuel AME Church in downtown Charleston.

The complaint says the Heritage Act, approved by lawmakers in 2000 as a compromise for the Confederate flag’s removal from atop the Statehouse dome, violates several pillars of the S.C. Constitution by restraining legislative authority, creating a special law, and stripping home rule powers from municipal and county-level governments.

“By allowing a past majority — from twenty years ago — to control future legislatures, neither the people nor their elected representatives can be fully heard,” the lawsuit states.

Duvall, former executive director of the Municipal Association of South Carolina, said he wanted to join the suit because the Heritage Act is an example of government overreach.

"We can't change the name of Confederate Avenue in Columbia, yet we're the ones that go through the process to name our streets," he said in an interview. "I thought it was a very good selection of people to bring this case. It makes a persuasive argument to the people that this thing needs to go away."

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The Heritage Act pertains to markers commemorating all conflicts from the Revolutionary through the Persian Gulf wars and Native American and Black history installations.

State Sen. Gerald Malloy, a Hartsville Democrat, and Columbia attorney Matthew Richardson are representing the plaintiffs.

“Local governments better understand their communities. Because of their proximity and responsibility for local matters, they can be more responsive and best decide what changes, if any, to make to monuments and the names of places,” the lawsuit states.

Because these jurisdictions are also the ones that pay for maintenance and upkeep of state-protected markers, the Heritage Act’s restrictive nature takes away their autonomy, according to the lawsuit.

“They should be allowed to have a voice, through their local elected officials, in the items they pay for ... and what names for streets, structures and other public places they see daily.”

Pressure is mounting on college campuses around the state for lawmakers to allow for Heritage Act exceptions. Trustees at Clemson and Winthrop universities have sought permission to scrub Benjamin Tillman’s name from buildings, while the University of South Carolina wants to rebrand a residence hall on the women’s quad that currently bears the name of J. Marion Sims.

Neither Tillman, a former governor and U.S. senator from South Carolina who embraced white supremacist policies, nor Sims, a Lancaster native dubbed the “father of modern gynecology” who carried out experiments on slaves, were involved in conflicts outlined by the Heritage Act, giving some lawmakers and legal scholars room to suggest they’re not protected by the legislation.

State Rep. Seth Rose, D-Columbia, has said he plans to introduce a bill that would allow for an 80-year-old statute of Tillman on the Statehouse complex to be removed.

A large statue of former Vice President John C. Calhoun, an ardent pre-Civil War slavery defender, was removed from a Charleston park last month without state objection because Calhoun did not fall under the Heritage Act's protections, Wilson said at the time.

But with an estimated 200 Confederate monuments spread across South Carolina cities and towns, undoing the Heritage Act could have far-reaching implications, although Peeler, a Gaffney Republican, suggested other matters will take up lawmakers’ time when they return to business.

“We’re working to help our businesses reopen and restart our economic engine and employ our citizens,” he said on Twitter in June. “Changing the name of a stack of bricks and mortar is at the bottom of my to-do list.”

Follow Adam Benson on Twitter @AdamNewshound12.

Benson joined The Post and Courier's Columbia bureau in November 2019. A native of Boston, he spent five years at the Greenwood Index-Journal and has won multiple South Carolina Press Association awards for his reporting.

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