The U.S. District Court of Massachusetts may have dismissed a case bought by a Ugandan LGBT rights group against evangelical minister Scott Lively for “crimes against humanity,” but the judge in the case made it forcefully clear that this was down to a matter of jurisdiction—not because the court sided with Lively, his words and deeds.
In his ruling, Judge Michael Ponsor issued a strongly worded denunciation of Lively’s “crackpot bigotry,” his conspiracy to persecute LGBTI people in Uganda, and the “terrible harm” he has done. Lively had also violated international law, Judge Ponsor said.
“Defendant Scott Lively is an American citizen who has aided and abetted a vicious and frightening campaign of repression against LGBTI persons in Uganda,” Judge Ponsor ruled.
Ponsor added, “[Lively’s] crackpot bigotry could be brushed aside as pathetic, except for the terrible harm it can cause. The record in this case demonstrates that Defendant has worked with elements in Uganda who share some of his views to try to repress freedom of expression by LGBTI people in Uganda, deprive them of the protection of the law, and render their very existence illegal.”
The evidence, said Judge Ponsor, “confirmed the nature of Defendant's, on the one hand, vicious and, on the other hand, ludicrously extreme animus against LGBTI people and his determination to assist in persecuting them wherever they are, including Uganda. The evidence of record demonstrates that Defendant aided and abetted efforts (1) to restrict freedom of expression by members of the LBGTI community in Uganda, (2) to suppress their civil rights, and (3) to make the very existence of LGBTI people in Uganda a crime.”
In an interview with the Daily Beast, Lively welcomed the court ruling as a victory, dismissed the judge’s condemnation of him as political posturing, and indicated that he may return to Uganda in the future.
“I work all over the world to promote a family-centered society in which homosexuality is tolerated but not condoned or normalized in the mainstream,” Lively said. “I think it’s a very balanced, biblical approach that is consistently mischaracterized by activists on the other side who want to portray it as extremism and hate. It’s not.”
Judge Ponsor’s ruling, however, runs counter to that claim: it bluntly lays out the scale and consequences of Lively’s anti-gay activities.
“Anyone reading this memorandum should make no mistake,” the judge wrote. “The question before the court is not whether Defendant's actions in aiding and abetting efforts to demonize, intimidate, and injure LGBTI people in Uganda constitute violations of international law. They do.”
Sexual Minorities Uganda v. Lively was filed in 2012 under the Alien Tort Statute (ATS), which allows for foreign victims of human rights abuses to seek civil remedies in U.S. courts.
In 2013, however, a Supreme Court ruling limited the extraterritorial reach of the ATS, which meant the District Court did not have jurisdiction, Judge Ponsor said.
“The much narrower and more technical question posed by Defendant’s motion is whether the limited actions taken by Defendant on American soil in pursuit of his odious campaign are sufficient to give this court jurisdiction over Plaintiff’s claims,” Judge Ponsor said. “Since they are not sufficient, summary judgment is appropriate for this, and only this, reason.”
The case had been brought against Lively by Sexual Minorities Uganda (SMUG) who were represented by the Center For Constitutional Rights (CCR), “for his (Lively’s) role in the persecution of LGBTI people in Uganda, in particular his active participation in the conspiracy to strip away their fundamental rights.”
Lively, president of Abiding Truth Ministries, had been active in anti-gay political maneuvering in Uganda since 2002, and had worked with proponents of the infamous ‘Kill The Gays Bill’—which originally included the death penalty for “aggravated homosexuality”—that first materialized in 2009 as the Anti-Homosexuality Bill, later Act.
When SMUG filed their federal lawsuit in 2012, Frank Mugisha, its executive director said Lively had “actively and intensively worked to eradicate any trace of LGBT advocacy and identity. Particularly damaging has been his claim that children are at risk because of our existence. His influence has been incredibly harmful and destructive for LGBT Ugandans fighting for their rights. We have to stop people like Scott Lively from helping to codify and give legal cover to hatred.”
Last year, Mugisha and others laid out in the starkest terms the political and cultural homophobia LGBT people faced in Uganda, after police had violently targeted an LGBT party, leading to the cancellation of a Pride event.
Today, Mugisha told the Daily Beast, “This ruling is good for us as an organization and for the LGBT community in Uganda because it affirms our claims against Scott Lively. The judge agrees with us in every claim we made. Technically he does not have the jurisdiction to make Scott Lively accountable, but that is the law.
“I would have been very disappointed if the judge had disagreed on the substance or any of the claims we made, but he did not,” Mugisha said. “He has left the way open for us to appeal or make another case in another court.”
Referencing a range of Lively’s writings and speeches, the judge in his ruling said Lively’s positions on LGBTI people “range from the ludicrous to the abhorrent. He has asserted that ‘Nazism was in large part an outgrowth of the German homosexual movement,’ and that “[i]n seeking the roots of fascism we once again find a high correlation between homosexuality and a mode of thinking which we identify with Nazism.’ He has tried to make gay people scapegoats for practically all of humanity’s ills,” finding “through various leads, a powerful homosexual presence in… the Spanish Inquisition, the French ‘Reign of Terror,’ the era of South African apartheid, and the two centuries of American slavery.”
One of Lively’s essays is titled, “Is Homosexuality Worse Than Mass Murder?”
The judge noted how Lively had traveled internationally “attending meetings and making speeches to encourage persecution of LGBTI people,” building “an international reputation for his virulently hateful rhetoric.”
Judge Ponsor’s ruling records in great detail Lively’s activities in Uganda, including a suggestion to his allies there that they should soften public backlash to the Anti-Homosexuality Act by nixing the death penalty as an ultimate punishment, and replacing it with a 20-year prison term.
Other emails exchanged ideas and suggestions on how to restrict LGBTI rights, and “intimidate and repress” the LGBTI community in Uganda.
After Judge Ponsor’s ruling, Pamela Spees, the CCR’s senior staff attorney, told the Daily Beast, “Obviously we’re disappointed in the ruling itself, but feel very vindicated by court’s findings as to Lively’s role in the persecution in Uganda. It vindicates what SMUG said all along for his responsibility in for the persecution they had suffered and the court was very clear in condemning that.”
Spees said CCR and SMUG were currently examining “all the options,” including appealing the ruling to the First Circuit Court of Appeals, and bringing state law claims in Massachusetts State Court.
The precedent set in the ruling was significant, Spees said, in sending a deterrent message to Lively and other anti-LGBT activists like him.
“It reiterated an earlier ruling that persecution on the basis of sexual orientation and gender identity is a crime against humanity under international law,” Spees said. “It is one of most serious crimes in international law. In looking at the evidence produced, it showed that Lively aided and abetted persecution, and was trying to do so elsewhere around the world. It’s just that he can’t be held accountable here because of the ruling limiting the Court’s jurisdiction--not that he didn’t do it.”
Spees said Lively, and others like him, could face prosecution in other countries where laws to prosecute him already existed. “These factual findings go a long way in helping advocates in other countries build support for these kinds of claims.”
A reporter queried with Spees, however, if American law is unable to prosecute Lively and the countries where he operates are anti-LGBT themselves, then effective laws to prosecute him may not exist.
“Certainly, countries that are anti-LGBT and have retrograde laws on their books are going to continue to be difficult places to live and work,” conceded Spees. “But this case and these findings have contributed something very significant to the understanding of international law.
“This is the first case of its kind where have an organization like SMUG bringing a case against someone at the level of Lively pushing out this program of persecution. Now there’s an extensive factual record of how that happened, how it came about, who he worked with, and the impact it had.
“All this casts light on how situations develop and operate, which will be informative not just for people in Uganda, but in other places around the world where Lively and others like him target much more vulnerable communities.”
“I’m delighted,” Lively told the Daily Beast following the ruling. “Even though Judge Ponsor engaged in a lot of nasty rhetoric about my beliefs and writings, he followed the rule of law and dismissed the case when he could have kept it going to proceed on to trial.”
A reporter recited to Lively the damning descriptions of his actions as described by the judge.
“He had to do that, didn't he?” Lively said of the judge’s denunciation. “He’s an ideologue on the Left, and he’s going to catch hell from his fellow travelers for letting me out of the lawsuit. This is his way of mitigating damages and deflecting blame. This is something they are going to be very unhappy with.”
Asked if he accepted the judge’s description of his actions, Lively remained defiant.
“No, this is all hyperbole,” Lively said. “This is the sort of thing you see written in editorials in college newspapers by gay student activists, not the kind of language you expect from an objective federal judge. I just think the extremity of the hyperbole is evidence of how much he feared the consequences of following the law in this case. The more he can attack me with this inflammatory language, the less he’s going to take from the Left for doing what he was required to do under the law.
“There a lot of other judges that are far Left extremists in the federal judiciary that wouldn't have granted the motion for summary judgment. They would have put forward some specious legal reasoning and allowed the case to continue towards trial. For some reason, Judge Ponsor has released me from their trap and I’m grateful for that.”
A reporter again read passages of the judge’s ruling, describing Lively as aiding and abetting the persecution of LGBTI Ugandans.
“If you read the Order, there is none of standard legal analysis that goes with those kind of conclusory (sic) statements. A serious federal ruling has a step-by-step prove-up of the conclusions. There is none of that here. This is just rhetoric you’d find in a gay editorial. It’s really meaningless in a legal sense. It’s not legally binding on anybody. It’s just one man’s opinion who just happens to be on a federal bench.”
Lively denied he had gone to Uganda to influence the law-making process. “I was invited to speak at a seminar which I did do.”
“I don't have an animus towards homosexuals,” Lively insisted. “I have an animus towards the homosexual political agenda. I don't believe sex outside of marriage in any form should be normalized in mainstream society, but that people who choose to live outside the mainstream should be left alone.
“I don't support invasion of privacy. I have never advocated hatred or violence against anyone. I believe and always support tolerance for people who have different views and forms of conduct. I just stand for public policy in which those things are not mainstream.”
Asked whether he believed in LGBT equality, Lively responded: “I think every person deserves basic human rights, but not based on their sexual conduct—just based on the fact they are a human being,” he said.
There are laws against LGBT people throughout the world—did Lively want to see those laws scrapped so LGBT people can live equally, a reporter asked.
“People’s basic human rights and civil rights should be protected in a way in which sexual conduct outside marriage is not normalized in the society,” Lively replied. “I think that is a balance that can be achieved and that's what I work towards.”
Asked if he planned to return to Uganda, Lively told the Daily Beast, “I don’t have any current plans to do that, but it’s certainly possible at some point in the future.”
Lively said he planned to go to Israel and the Middle East later this year “for a book I’m working on, not related to advocacy or conferences or speech-making. I just go where I’m invited and I advocate my views which are clearly laid out in my writing. Nothing is hidden. I have been taking the same position and advocating the same ideas for 30 years, which is why the SMUG lawsuit was really so outrageous.”
A reporter asked whether Lively accepted that what the judge called his “crackpot bigotry” had done “terrible harm” to LGBT people in Uganda.
“No, I don't accept that,” said Lively, “and I have to leave right now and finish this interview. I’ve gotta run, thank you, goodbye.”