‘What’s in a name? That which we call a rose, by any other name would smell as sweet.’ That question, posed by Juliet in Shakespeare’s ‘Romeo and Juliet,’ seems to now occupy much of Washington. At a Christmas party with many media from Washington, the question was put to me more succinctly and repeatedly as ‘can they do that?’ The ‘that’ was the renaming of the Kennedy Center as the Trump-Kennedy Center. Soon, courts may have to face this quintessentially Shakespearean question, ‘for never was a story of more woe.’
Around Christmas, Ohio Democratic Rep. Joyce Beatty, an ex-officio member of the board, announced her lawsuit over the name change.
As a threshold matter, I will address the legal rather than policy basis for the change. Many of us chafed at the renaming of the center, which was a memorial to an assassinated president. However, what people want to know is whether the change can be challenged. The answer is yes, but it will not necessarily be easy or certain in its outcome.
The center was originally built as the National Cultural Center in a 1958 law. It was renamed the John F. Kennedy Center by an act of Congress in 1964 as a living memorial.
The key issue is how that designation was made. It was contained in a statute passed by Congress. Titled John F. Kennedy Center for the Performing Arts, 20 U.S.C. 3, states that ‘no additional memorials or plaques in the nature of memorials shall be designated or installed in the public areas of the John F. Kennedy Center for the Performing Arts.’
There are exceptions in sections 2 and 3 of the provision:
‘(2) Paragraph (1) of this subsection shall not apply to—
(A) any plaque acknowledging a gift from a foreign country;
(B) any plaque on a theater chair or a theater box acknowledging the gift of such chair or box; and
(C) any inscription on the marble walls in the north or south galleries, the Hall of States, or the Hall of Nations acknowledging a major contribution; …
(3) For purposes of this subsection, testimonials and benefit performances shall not be construed to be memorials.’
The language supports a congressional intent to insulate the memorial from any changes or dilutions. The specificity of the exceptions to plaques for donors suggests that other major changes, such as a name change, are barred under federal law. Moreover, the center is named by an act of Congress. It is hard to find any authority of the board that would undo or delegate that power.
There is a legitimate question whether a name change is an ‘additional memorial or plaque,’ but it would seem to be so. If a simple plaque to donors had to be expressly exempted, giant letters dedicating the center to an additional person would seem to fall within the congressional intent.
Still, the Trump administration could quote the servant Sampson from ‘Romeo and Juliet’ and tell a court to ‘take it in what sense thou wilt,’ but the statute does not expressly say that name changes are a memorial.
Challengers could argue that, under the board’s interpretation, any memorial established by Congress, from the Lincoln Memorial to the Kennedy Presidential Library, could be renamed or hyphenated.
If a court agrees that the statute reflects a clear congressional intent to bar any change to the memorial, the question is how it can be challenged.
In any legal challenge, the advantage would likely rest with the challengers if they can meet the standing requirements.
Kerry Kennedy, the daughter of Robert F. Kennedy and sister of Health and Human Services Secretary Robert F. Kennedy Jr., announced that, ‘Three years and one month from today, I’m going to grab a pickax and pull those letters off that building, but I’m going to need help holding the ladder. Are you in? Applying for my carpenter’s card today, so it’ll be a union job!!!’
I would not recommend that approach. Most attorneys strive to keep their clients from falling from great heights.
The question is, who has standing to challenge the change. Are Kennedy family members injured in a concrete way to satisfy standing? Associational standing from historical preservation groups can be tricky. However, some may soon test those waters.
The most obvious way to address the issue is for Congress to be heard. It can either ratify the board decision, or it could expressly declare the change to be invalid and clarify that ‘additional memorial’ encompasses any name change. Either resolution may prove difficult with the heavily divided Congress. Soon a judge may join Romeo in his lament: ‘O, teach me how I should forget to think!’
In any legal challenge, the advantage would likely rest with the challengers if they can meet the standing requirements. Otherwise, the name could remain by default … or until another administration decides to make another change to the center previously known as the Kennedy Center.
Of course, today Juliet might resolve the naming problem in a similar fashion with a hyphenated marital name of Juliet Capulet-Montague, though it clearly would have gone over as poorly as the Trump-Kennedy name. It clearly does not smell as sweet to many.
I expect both court and congressional action to follow. Absent a quick resolution by Congress (which seems unlikely), this could result in years of litigation.
However, both sides might be wise to heed Shakespeare’s warning in another play that, ‘where two raging fires meet together, they do consume the thing that feeds their fury.’
