Dead Confederates, A Civil War Era Blog

West face of the Confederate Monument at Arlington National Cemetery, photographed in September 2011 by Wikimedia user Tim1965. Reproduced here under Creative Commons license.

Some of you will recall that last year the Department of Defense published a report by the Congressionally-established Naming Commission that recommended changing the names of old Confederates from military installations (e.g., Fort Hood in Texas, and Fort Bragg in North Carolina), and removing Confederate iconography in various places. Another recommendation of the Naming Commission was to remove the Confederate monument at Arlington National Cemetery, sometimes referred to as the Reconciliation Monument. I’ve written about that monument before, and its supposed proof of the existence of Black Confederate soldiers. (Spoiler: it’s not.) The Naming Commission’s recommendation was that “the statue atop of the monument should be removed. All bronze elements on the monument should be deconstructed, and removed, preferably leaving the granite base and foundation in place to minimize risk of inadvertent disturbance of graves” (pp. 15-16).

Now comes a coalition of Confederate Heritage™ groups and individuals, led by a group from Florida called Defend Arlington, seeking to block any removal of alteration to the monument. You can read Defend Arlington’s initial filing here.

While I’m not an attorney, I’ve followed a number of these cases over the last few years, and there really doesn’t seem to be much new here, nor any compelling arguments made. The plaintiffs include some familiar names, and I honestly chuckled a little at the ways in which they claim they will be injured if the monument is removed. For some of them it seems quite a stretch.

Confederate activist H.K. Edgerton at an event in Pensacola, Florida in 2020. Photo by John Blackie via Pensacola News Journal.

Plaintiff Harold K. Edgerton is an individual residing in North Carolina. Plaintiff Edgerton is a Confederate Southern American of African ancestry. As an active and vocal defender of Southern culture and history and the honor of the Confederate soldier both black and white, Plaintiff Edgerton is often invited to speak on these issues in front of the Memorial, including the upcoming June 4 memorial service at ANC [Arlington National Cemetery]. He identifies with the African-American images on the Memorial and believes that its removal erases his black family’s participation in the Confederate struggle for independence from America’s most prominent military history museum.

I’m not aware that Edgerton has ever spoken at Arlington National Cemetery, so maybe the phrasing that he “is often invited to speak” there was chosen deliberately.

Edgerton and the attorney who drafted this filing – more about him anon – perhaps also should not have chosen to describe Edgerton as a “Confederate Southern American,” given that Edgerton’s patron and mentor, the odious Kirk Lyons, got sanctioned by the United States District Court for the Eastern District of Virginia to the tune of $10,000 for filing a discrimination action on behalf of some “Southern Confederate American” employees of DuPont, that the court found to be “not only incredible but, frankly, disingenuous. . . [and] also frivolous, unreasonable, and without foundation.”

But back to the plaintiffs.

Plaintiff Richard A. Moomaw is an individual residing in Virginia. Plaintiff Moomaw has ancestors buried in Section 16 of the ANC. Plaintiff Moomaw travels to Arlington with his family to honor those familial descendants that honorably served in our military. The Memorial represents the reunification of the North and South and the commemoration of all fallen military. Removal of the Reconciliation Memorial, as it is commonly known by, attributes a stigma of dishonor and disgrace to those soldiers, including Plaintiff’s descendants causing grave harm.

I don’t think this is gonna fly. Even if you stipulate that removal of the monument “attributes a stigma of dishonor and disgrace to those soldiers,” it’s pretty hard to argue that that opprobrium extends mysteriously down through the generations to someone in 2023 who never met his Confederate ancestor, or likely any other actual Confederate. (Private Samuel Moomaw of Ashby’s Seventh Virginia Cavalry, died in 1863.)

Plaintiff Edwin L. Kennedy, Jr. is an individual residing in Alabama. Plaintiff Kennedy has ancestors buried in unknown graves across the South and believes that the Memorial commemorates and marks the graves of his ancestors, in a manner similar to the Tomb of the Unknown Solder [sic.]. Removal of the Memorial will cause him grave harm.

You will never convince me that that last line isn’t a deliberate pun.

Anyway, Mr. Kennedy’s feelings are hurt, which somehow translates to “grave harm.” I will note that his home in New Market, Alabama is nearly 600 miles away from the monument at Arlington, and there’s no indication in the filing that Mr. Kennedy has ever visited the national cemetery there. This reminds me a bit of the situation with Hiram Patterson of Dallas, who was talked into being plaintiff in a lawsuit over the Robert E. Lee monument in Dallas, who never read the claim before it was filed, had never heard of the attorney filing the case before the day it was filed, and admitted to being uncertain of what the legal claim being made in his name was.

Plaintiff Teresa E. Roane is an individual residing in Virginia. Plaintiff Roane is a past Archivist for the Museum of the Confederacy and has given speeches in front of the Memorial. Plaintiff Roane has been invited to speak at the Memorial on June 4, 2023. Removal will negatively impact Plaintiff Roane’s economic opportunities associated with historic and civil war tour guide opportunities.

As with Edgerton, I’m not sure Ms. Roane has made any formal address at the monument, but perhaps so. This is the only plaintiff’s description I see that specifies the sorts of injuries that are usually at the heart of a civil lawsuit, in this case making it more difficult for her to work guiding tours there. Maybe those presentations as a tour guide are the “speeches in front of the Memorial” described in the filing.

The plaintiffs are represented by attorneys from the Washington D.C. offices of Lewis Brisbois Bisgaard & Smith, one component of a very large, nationwide firm. The lead attorney seems to be Paul Kisslinger, a partner in the D.C. office, and until recently was the Assistant Chief Litigation Counsel for the Enforcement Division of the Securities and Exchange Commission (SEC). Kisslinger is obviously a very skilled and experienced attorney, but I really feel like this case is a dog, and pretty far afield from his specialty practice area.

While I’m not an attorney, I’ve followed a number of these cases over the last decade, and this one really seems like a new verse to a tired, old tune. (The plaintiffs go to a lot of trouble in the filing to assert that they’re striving hard for diversity, mentioning not less than FOUR TIMES that the monument’s sculptor, Moses Ezekiel, was Jewish.) More often than not, it seems to me, these cases get dismissed before ever going to trial, usually because the plaintiffs lack standing – that is, they are in a position that they will suffer real, concrete, and measurable harm without intervention by the courts. I’m just not seeing that here, and only one of the plaintiffs, Teresa Roane, even hints at it. But her argument – that she will suffer economic damage through harm to her Civil War tour business – seems pretty weak, given that the Confederate burials themselves will not be moved, and the granite base of the monument would remain in place under the recommendations of the Naming Commission.

So we’ll see what happens. I’ve been wrong before in predicting how the courts would go, so I’m not going to bet major money on this one. But I will be surprised if the plaintiffs prevail.

Stay tuned, y’all.