A federal district court judge in Massachusetts has refused to dismiss a lawsuit filed on behalf of Sexual Minorities Uganda, a gay rights group, against Scott Lively, described in the complaint as an attorney, author, and evangelical minister who allegedly worked to “foment” what the suit described as “an atmosphere of harsh and frightening repression against LGBTI people in Uganda.”
Judge Michael A. Ponsor found the allegations suggested potential liability under the US Alien Tort Statute (ATS), which authorizes federal courts to adjudicate claims by foreign individuals or entities against American citizens for violations of the “law of nations.”
According to the complaint, Lively — who heads the Abiding Truth Ministries and whose books include “Redeeming the Rainbow: A Christian Response to the ‘Gay’ Agenda” and “The Pink Swastika: Homosexuality in the Nazi Party” — has visited Uganda several times and met with private individuals and government officials there and in the US, encouraging a campaign to enact harsh criminal laws and impose severe social repression of gay, lesbian, bisexual, transgender, and intersex people in the African nation. Many of the relevant activities — including review of proposed legislation and communications regarding strategy — the suit charges, were undertaken from his home in Massachusetts. Specific individuals in Uganda — including the sponsor of a draconian legislative proposal, the Anti-Homosexuality Bill — with whom Lively is alleged to have conspired are named in the suit.
Though the complaint cites violations of Massachusetts law, its main focus is on the federal claims made under the ATS. Sexual Minorities Uganda, an umbrella group for various LGBTI community organizations there, is represented by the Center for Constitutional Rights, which argued a case could not be brought against Lively in Uganda due to limitations of the laws there.
Moving to dismiss the suit, Lively argued that nothing he was alleged to have done violates the “law of nations,” that the ATS does not extend to actions taken overseas, that the plaintiff organization lacks standing to bring the case, that the First Amendment shields him from liability for advocacy activities, and that the state law claims lack an adequate legal foundation.
Judge Ponsor, rejecting all of those arguments, emphasized that denying the motion to dismiss is not a ruling on the merits and that the plaintiff will have to prove its factual assertions in a trial.
Significantly, the judge concluded, based on a review of international legal materials, that “widespread, systematic persecution of LGBTI people constitutes a crime against humanity that unquestionably violates international norms.” He also stated that a review of “applicable authorities” shows that “aiding and abetting in the commission of a crime against humanity is one of the limited group of international law violations for which the ATS furnishes jurisdiction.” Persecution, he found, can be considered a crime against humanity if it is “part of a widespread or systematic attack directed against any civilian population.”
Responding to Lively’s argument that “persecution based on sexual orientation or gender identity has not been sufficiently recognized under international law to be actionable under the ATS,” Ponsor conceded that many treaties lack specific mention of these categories but that “virtually all of these instruments” provide protection against crimes based on “other grounds that are universally recognized as impermissible under international law.”
He continued, “Significantly, the boundaries of persecution are almost always defined by those carrying out the persecution against a particular group… This fact strongly argues in favor of a generous interpretation of what groups enjoy protection under international norms.” The argument that such international norms would not today be construed to protect LGBTI people from systematic persecution was “unpersuasive” in Ponsor’s view.
Lively argued that because LGBTI people are subject to persecution in many countries, there is no clear international norm against such persecution, to which Ponsor responded, “This argument is utterly specious,” noting that even Uganda’s highest court itself has ruled that gay and lesbian people are entitled to equal treatment under that country’s laws.
“More importantly,” he wrote, “even a glance at the history of treatment of gays and lesbians makes it clear that the discrimination suffered by them is on a par with the treatment meted out to other groups, defined by religion, race, or some other accepted characteristic… The fact that a group continues to be vulnerable to widespread, systematic persecution in some parts of the world simply cannot shield one who commits a crime against humanity from liability.”
In Lively’s case, the court found that the plaintiff’s claims, if proven, would qualify under ATS jurisdiction.
“The allegations feature Defendant’s active involvement in well orchestrated initiatives by legislative and executive branch officials and powerful private parties in Uganda, including elements of the media, to intimidate LGBTI people and to deprive them of their fundamental human rights to freedom of expression, life, liberty and property,” Ponsor wrote, while referring to international prosecutions dating back to the post-World War II Nuremburg trials.
The complaint alleges that Lively’s role was “analogous to that of an upper-level manager or leader of a criminal enterprise,” who “participated in formulating the enterprise’s policies and strategies.” Indeed, it asserts that Lively had himself acknowledged “his efforts made him instrumental in detonating ‘a nuclear bomb against the “gay” agenda in Uganda.’”
The Supreme Court has recently ruled that ATS has very limited extraterritorial application, but Ponsor found the allegations in this case met the high court’s requirements. The complaint “alleges that the tortious acts committed by Defendant took place to a substantial degree within the United States, over many years, with only infrequent actual visits to Uganda,” the court wrote. “The fact that the impact of Defendant’s conduct was felt in Uganda cannot deprive Plaintiff of a claim. Defendant’s alleged actions in planning and managing a campaign of repression in Uganda from the United States are analogous to a terrorist designing and manufacturing a bomb in this country, which he then mails to Uganda with the intent that it explode there.”
Ponsor also found that the impact of Lively’s alleged actions on Sexual Minorities Uganda, its members, and the LGBTI community gave the group associational standing to bring its claims.
Regarding Lively’s First Amendment argument, Ponsor wrote, “It is well-established that speech that constitutes criminal aiding and abetting is not protected by the First Amendment. It is equally well supported that the same logic extends to civil actions for aiding and abetting… Plaintiff contends that Defendant’s conduct has gone far beyond mere expression into the realm not only of advocacy of imminent criminal conduct, in this case advocacy of a crime against humanity, but management of actual crimes — repression of free expression through intimidation, false arrests, assaults, and criminalization of peaceful activity and even the status of being gay or lesbian.”
Ponsor acknowledged “the chilling effect that can occur when potential tort liability is extended to unpopular views, but wrote that the complaint “sets out plausible claims to hold Defendant liable for his role in systematic persecution, rather than merely for opinions that Plaintiff finds abhorrent.”
Ponsor, a senior district judge since 2011, was appointed to the federal bench by President Bill Clinton.