Abstract

Excerpted From: Jonathan C. Augustine, The South Will (Not) Rise Again: the Religion of the Lost Cause Meets the Politics of Confederate Monument Removal, 58 University of Richmond Law Review 555 (Symposium 2024) (165 Footnotes) (Full Document)

Southern whites after the Civil War were overwhelmingly preoccupied with creating a narrative to explain their defeat. Any article about Confederate culture and its evolution following the Civil War, therefore, must begin with understanding how white Southerners came to terms with that defeat, how they justified their failure to create a separate nation, and how they outright rejected the idea that slavery was a primary cause of the Civil War. To do so requires an examination of the evolving post-war narratives about the Old South, the Confederacy, and even Reconstruction: all of which revolve around what Confederates and their descendants called the “Lost Cause.”

The central question [for white Southerners] was a theodicy dilemma: how to square the ideas of providential power and white Christians as God's chosen people with military defeat. Finding Confederate political ambitions foreclosed, the new battle was transposed from the political arena, where disputes were settled with military violence, to the cultural arena.

This new cultural project has become widely recognized by scholars as “the religion of the Lost Cause,” a term derived from an 1866 book with this name by a richmond editor ... who called explicitly for a “war of ideas” to sustain southern identity.

From New Orleans to Durham: My Personal Perspective on Confederate Monuments

In 2017, around the beginning of my doctoral program at Duke University, I had two experiences with remnants of the South's attempt to lionize the religion of the Lost Cause through government speech. Both incidents dealt with the removal of Confederate monuments of the South's failures.

The first instance was in May 2017 in my hometown of New Orleans. While serving as the senior pastor of Historic St. James African Methodist Episcopal (“AME”) Church in the city's downtown area and as general chaplain of Alpha Phi Alpha Fraternity, Inc., I led a prayer vigil for the removal of Confederate iconography in New Orleans, directly across from a statue of Jefferson Davis, the first and only president of the Confederate States of America.

Unaware of the actual violence that had already occurred and the many looming threats the city's then-mayor, Mitch Landrieu, was navigating, I gathered with other members of the fraternity and many concerned citizens to openly pray for divine intervention, peaceful protection, and a spirit of reconciliation to heal the many factions that were as real in 2017 as they were in 1865 when the Civil War ended. Our efforts were successful and the Jefferson Davis statue was taken down without incident. Moreover, as Landrieu comprehensively recounts, by May 17, 2017, he was ultimately successful in removing the Confederate statues of Jefferson Davis, P.G.T. Beauregard, and Robert E. Lee from public thoroughfares in New Orleans.

In August 2017, the second incident occurred in my adopted home of Durham, North Carolina, on Duke University's campus. Inasmuch as I was a student at the divinity school, I predictably met with other classmates for prayer in Duke Chapel before classes began. While standing in awe of the iconic chapel's English Gothic architecture and appreciating the historic stone carvings, I recognized at its entrance Martin Luther, the great Protestant reformer, as well as John Wesley, the founder of Methodism. I also noted a carving of the familiar image of Confederate General Robert E. Lee and my mind raced to Ronald Reagan's infamous presidential campaign speech in Neshoba County, Mississippi--where the civil rights workers James Chaney, Andrew Goodman, and Michael Schwerner were murdered--as he launched his campaign by promising that “the South shall rise again!”

As an African American born and raised in New Orleans, I am intimately familiar with the South's past, including the repressive feelings so many Black Americans have been forced to endure because of Confederate iconography. I am also familiar with the majority population's forced attempts to honor those who fought against America's Union in the Confederate army, attempts to maintain chattel slavery, and arguments that the Civil War was merely about “states' rights.”

Charlottesville's “Unite the Right” 2017 Rally Represents the New Norm: A Transition from Arguments for Southern Heritage and a Move to the Politics of (White) Christian Nationalism

My August 2017 feeling of repression was much different from my childhood memories of going to Mardi Gras parades at Lee Circle in New Orleans, or more recent occurrences of driving by that statue of Jefferson Davis. As an ordained minister serving an AME Church congregation in the South, I was deeply impacted by the white supremacy that led to the June 17, 2015, massacre at Mother Emanuel AME Church in Charleston, South Carolina. My pastoral colleague and fraternity brother, the Reverend Clementa Pinkney, was killed alongside eight members of his midweek Bible study by a deranged white supremacist, who had been photographed with Confederate iconography before the church shooting.

At that moment in August 2017 on Duke's campus, not only did I feel more aware of my surroundings, but I also felt more oppressed as an African American. As the next few days unfolded, with news of the now-infamous “Unite the Right” rally in Charlottesville, Virginia, centered on the removal of Confederate statues, I found myself wrestling with the South's past, while ironically studying reconciliation, in hopes of making things better for the South's future.

After tensions in Charlottesville between neo-Nazis and progressive antiracist activists flared, resulting in a fatality, the forty-fifth president of the United States, Donald Trump, stoked America's racial tensions by attributing blame to “both sides.” Only days thereafter, Duke University President Vincent Price, who assumed the university's leadership only one month before, courageously ordered the removal of the Lee statute from the chapel entrance. As a private actor, President Price removed a deep-seated icon of division that had arguably become more polarizing in the twentyfirst century than when initially erected in the century before.

Framing the Political and Legal Issues This Article Addresses in the Divided States of America

With such deep, well-known divisions, I wondered why some state legislatures passed cultural heritage laws, or “statue statutes,” to prevent municipalities from removing Confederate iconography, as Mayor Landrieu had in New Orleans. Because I attended law school well before entering ordained ministry, I also wondered what First Amendment implications of “government speech” were at issue with municipalities attempting to remove Confederate statues but being precluded from doing so by preemptive state laws.

These [“statue statutes”] vary in form. North Carolina's “Cultural History Artifact Management and Patriotism Act of 2015” provides that an “object of remembrance located on public property may not be permanently removed ....” In 2000, South Carolina adopted a measure that protected monuments to the “War Between the States,” among other conflicts, while revealing its focus by honoring the “South Carolina Infantry Battle Flag of the Confederate States of America.”

Alabama's “Memorial Preservation Act of 2017” similarly prevents the removal of any “statue ... intended at the time of dedication to be a permanent memorial to an event, a person, a group, a movement, or military service that is part of the history of the people or geography now comprising the State of Alabama” that has been in place for 40 years or more.

Such laws are blatant aims at preserving the legacy of white supremacy and preemptive attempts to remove decision-making authority from local governments. For the purposes of this Article, however, I am more concerned about two things: (1) their harmful contribution to the growing domestic terrorist threat of Christian nationalism, often also called white Christian nationalism, and (2) the harmful First Amendment impact they have on the “befuddling area of law” that is the government speech doctrine.

Although some argue the term Christian nationalism is a misnomer in that the identity politics of a “cross and country” conflation has nothing to do with any church-related orthodoxy, wellrespected scholars recognize it as emanating from a national theology that regards America as God's “chosen people.” Moreover in the eyes of some, any threat to God's original establishment of the hierarchy of America--or, for the purposes of this Article, the racialized hierarchy of the South--is antithetical to God's intention for his chosen people.

With the University of Richmond Law Review deliberately reckoning with the city of Richmond's history as a bastion of Confederate iconography, and thematically hosting its 2024 Symposium on Confederate monuments, I have been given the opportunity to wrestle with my feelings and questions, while also infusing practical political advocacy. The gift of the invitation to write this Article comes after a period of researched reflection: six years after the personal 2017 experiences I described in New Orleans and Durham, respectively, and three years after the horrific May 25, 2020, murder of George Floyd, an unarmed African American man who was brutally slain at the hands of a disgraced white Minneapolis, Minnesota police officer. Floyd's death spurred immense public outrage that caused many municipalities to fight against the lionization of the Lost Cause and ultimately remove 200 Confederate monuments from the public eye.

Following this obvious change in political tide, Southern municipalities have begun to rebuke the once widely held sentiment that “the South shall rise again.” Now, municipalities are attempting to “speak,” within the meaning of the First Amendment, by removing Confederate statues that were erected by twentieth-century white Southerners to preserve a history not rooted in facts, while also ignoring the horrific legacy of chattel slavery.

Addressing the Issues: This Article's Organizational Structure

Insofar as this Article is concerned with the religion of the Lost Cause, I attempt to connect the government speech doctrine and the Establishment Clause, as I urge those eight state legislatures that have enacted “statue statutes” to pass legislation that will stop the content-based regulation of municipal government speech. Further, to support my central argument that the religion of the Lost Cause from the past underpins the white Christian nationalism of the present form of “Otherism” that is arguably America's most significant domestic terrorism threat Article is structurally organized in four parts.

After this narrative Introduction, Part I explores the myth of white supremacy, a key phenomenon that undergirds the religion of the Lost Cause, while also highlighting the actions and reactions of the nineteenth and twentieth centuries that led to so much Confederate iconography in the United States. Part I also highlights the nineteenth-century period of Reconstruction (1865-1877) immediately following the Civil War, as a segue to explore the role clergymen played in transforming the myth of the Lost Cause into a religion, as Confederate monuments were strategically placed. Indeed, Professor Cox writes:

The most common site for building Confederate monuments was on the grounds of local courthouses and state capitols .... [T]hese monuments have claimed the public square for southern whites, spaces that for more than a century have been not simply white-controlled but also shaped by segregation. inside the courthouse or statehouse, white men made laws that served as a cudgel against African American equality ....

In other words, Reconstruction Confederate monuments were deliberately placed to remind African Americas who was still “in charge,” despite the South's defeat in the Civil War.

In building upon the foundation of a “separate” Southern culture established in Part I, Part II highlights the movement to remove Confederate monuments from the public domain, before exploring the government speech doctrine. It underscores how changing politics, and changing demographics, have caused cities to think differently about Confederate iconography and how their political speech is being silenced by state statutes that prevent them from removing Confederate monuments.

Insofar as the desire to maintain such monuments is perpetuated by white supremacy, I argue that the South's religion of the Lost Cause has been conflated with a Christian nationalism, which is rooted in an Otherism, fears America's demographic changes, and is literally fighting to maintain power. The best example of my argument is the 2016 election of Donald Trump as President of the United States, and the vigilante version of white Christian nationalism that attempted to upend democracy during the January 6, 2021, insurrection at the United States Capitol. Many insurrectionists were photographed with regalia exclaiming, “Jesus is my Savior, Trump is my President.” One group even carried life-size replicas of Jesus's cross.

Part II also argues for the repeal of state statues that prohibit municipalities from engaging in government speech, because any such prohibition arguably pits state law against the Supreme Court of the United States' logic in Pleasant Grove City v. Summum. Municipalities must be allowed to “speak” today, and engage in the politics of Confederate monument removal, just as they were allowed to “speak” in years past, when they engaged in the politics of Confederate monument erection. Finally, I provide a synthesizing Conclusion, underscoring the connection between the religion of the Lost Cause and white Christian nationalism by calling for the repeal of so-called state heritage laws that preclude (free) government speech. Repealing these laws would allow other municipalities to follow New Orleans's example and decide for themselves the future of their Confederate monuments.

[. . .]

My experiences were not unique. At a time when so many in the United States were wrestling with Confederate monument removal, in 2017, I was directly a part of one statue's removal in New Orleans and indirectly a part of another's removal in Durham. Although Mayor Landrieu was ultimately successful in representing his constituents' political wishes by removing a series of Confederate monuments in New Orleans, other mayors in other states have not been as successful.

According to the Supreme Court's opinion in Pleasant Grove City v. Summum, the government speech doctrine pivots on whether the governmental body is the speaker or whether the government is simply providing a forum that facilitates private speech. When the government is the speaker--like when it has chosen to erect permanent monuments--the government's speech is expected to be “political,” in that the government's action represents its citizens voices, through the political process. In following that logic, when municipalities chose to erect Confederate monuments, they acted in accordance with their citizens' political interests. Demographics have changed.

In more recent years, the political sentiments of municipalities is obviously different. Just as periods of monument erection were typically in response to perceptions of Black progress, incidents when municipal actors attempted to takedown Confederate monuments have largely been in response to acts of white supremacy, none more so inflammatory than the May 25, 2020, murder of George Floyd.

If the government speech doctrine justifiably allowed municipalities to erect Confederate monuments as expressions of their political will, when state heritage laws, or “statue statutes,” preclude municipalities from removing Confederate monuments, those prohibitory laws stifle government speech, at best. More accurately described, at worst, they compel government speech that is inconsistent with the government's political will.

Although municipalities are political subdivisions of the states where they are located, “statue statutes” run afoul of the Supreme Court's logic in Pleasant Grove and the Court's affirmance of that logic in the more recent Walker v. Texas Division, Sons of Confederate Veterans, Inc., because of the government speech doctrine. Stated otherwise, state laws prohibiting Confederate monument removal are arguably unconstitutional. I call on those eight states that have enacted “statue statutes” to repeal those laws and allow municipal actors to vote on how they intended to “speak” with respect to Confederate monument removal under the government speech doctrine.

Senior Pastor, St. Joseph AME Church (Durham, NC); General Chaplain, Alpha Phi Alpha Fraternity, Inc.; Consulting Faculty, Duke University Divinity School; Missional Strategist, Duke Center for Reconciliation. Further information about the author is available at www.jayaugustine.com, or via social media platforms at @jayaugustine9.