Uganda’s marginalized LGBTI community brings persecution case to U.S. court

The accused American pastor asks a federal judge to dismiss the case

Jack Rodolico By Jack Rodolico

Pastor Scott Lively (YouTube)

On Monday, January 7, Scott Lively — pastor, lawyer and self-described expert on the “global gay agenda” — went to federal court in Springfield, Massachusetts.

Lively, an American, is being sued by Ugandans in a U.S. court for his alleged actions — in Uganda. Sexual Minorities Uganda (SMUG) claims Lively’s work is at the center of a conspiracy that has systematically deprived gay Ugandans of basic civil rights.

Lively’s defense: in Uganda, he did not act — he spoke. He expressed his views to those who would listen, and is therefore protected by the First Amendment of the U.S. Constitution.

The court heard arguments over whether it should dismiss SMUG v. Scott Lively, or allow the case to go to trial. The plaintiff and defendant made arguments for a little over an hour, and then everyone left. It was a tame, respectful event.

But it was a symbolic day for both Lively and Uganda’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community. Scott Lively was not the first American evangelical to bring the fight against homosexuality to Uganda. But this court case — whatever the ultimate outcome — is the first time Ugandans have brought the fight back to American soil.

Lively and Uganda’s notorious Anti-Homosexuality Bill

While he is neither prominent nor popular, Scott Lively is as controversial a figure as exists in the gay rights movement. Latitude News reported a series on Lively that focused on his work prior to Uganda, and how his trips to Uganda coincided with the proposal of the “Kill the Gays Bill.”

Lively believes homosexuality is a choice that goes against the will of God. But he takes a bigger leap of faith than many other evangelical ministers are willing to, claiming homosexuality is a “poisoned stream” throughout history. He blames it for the Holocaust, Apartheid and American slavery, among other historic atrocities.

On several trips to Uganda between 2002 and 2009, Lively preached this gospel, underpinned with the belief that homosexuals from the West systematically invade Christian countries — like Uganda — raping children in order to make them gay.

He never provides facts to back his theories up.

Lively’s 2009 trip was his most important visit to Uganda. He advocated his opinions — and his prescriptions for change — at a conference for evangelicals and before a group of Ugandan members of parliament. Not long after Lively left Uganda, MP David Bahati proposed the Anti-Homosexuality Bill, which proposed terrifying penalties for all imaginable “homosexual acts,” from sex to advocacy to simply not reporting someone known to be gay. It was dubbed the “Kill the Gays Bill,” because it proposed to do just that.

Lively’s day in court is timely. While the bill never passed in 2009, it resurfaced at the end of 2012 and could pass the Ugandan parliament before a judge in Massachusetts decides whether or not to advance the case against Lively. Parliamentarians claim the “Kill the Gays Bill” no longer includes the death penalty, but, whatever is in the bill, it is still an absurd piece of legislation that proposes harsh sentences for being gay.

And it doesn’t matter that the bill is not law. Since it was proposed in 2009, the bill has been “enforced” by police, government ministers and ordinary citizens. After being publicly outed on the cover of a magazine, gay activist David Kato was brutally murdered. Police have shut down gay rights meetings and even plays featuring gay characters.

The man in the bottom right corner of this picture is David Kato, who was mysteriously murdered in his home three months after his face was put on the cover of this magazine.

Whoever the prime actors, there is no denying that Uganda’s LGBTI community is currently being persecuted.

Free speech or persecution?

But is Lively to blame? He did not advocate for violence against homosexuals, though he did call for public policy that would discourage homosexuality. And why can Ugandans sue him in U.S. court, anyway?

It all goes back to 1789, when Congress passed the Alien Tort Statute as a part of the First Judiciary Act. The statute allows foreigners to sue Americans for civil, not criminal, damages for acts committed abroad.

But no one was talking about human rights in 1789. It wasn’t until 1980 that the Alien Tort Statute was used in its modern interpretation — in cases involving abuses of international human rights, cases like torture, forced labor and enslavement. The first case in which the statute was successfully used in this manner was argued by the Center for Constitutional Rights, the same law firm representing SMUG.

But Lively’s case, as Judge Michael Ponsor said on Monday, “exists at a crossroads between two very basic values that our country holds perhaps closest to its national heart and its national culture. And that is, one…we treat everyone equally. And, secondly, we treasure, we value and we revere the right to free speech.”

Judge Ponsor repeatedly acknowledged he was struggling to see where Lively’s activity in Uganda crossed the boundary between free speech and a conspiracy to persecute.

Pamela Spees, an attorney with the Center for Constitutional Rights, argued in court on behalf of SMUG. Spees told the court that Lively’s speech is evidence of his action.

A mourner cries during a memorial service for David Kato on his first death anniversary in Kampala, January 26, 2012. (Reuters/Edward Echwalu)

“We hear him calling for the criminalization of [LGBTI] advocacy,” Spees told the court. “He tells us you have got to silence them. You have got to ban gay pride parades…. He’s not a passer-through in Uganda. He’s somebody that is very invested in this particular outcome and he is helping them get there.”

After court adjourned, Spees told Latitude News: “It’s really important…for Lively to see that there were people who were in the courtroom whose lives were affected by his actions. They are trying to get at a key piece in the equation, and that is Scott Lively.”

One of the people trying to “get at” Lively is Pepe Onziema who said he came to Springfield “to face the devil.”

“This case is about making it clear to people who have exported their hate agenda to Uganda that their actions have a very real effect on us and they must stop,” said Onziema.

For his part, Lively, who is represented by Liberty Council, a conservative legal group affiliated with Jerry Falwell’s Liberty University, told Latitude News he is “cautiously optimistic.”

“If I had to put money on it, I’d say [Judge Ponsor] is probably going to rule for us,” Lively said. “But you never know what judges will do.”

Lively went on to describe the Center for Constitutional Rights as “a Marxist law firm.”

“They have a goal to engineer society according to their ideology,” he said. “I speak very articulately in terms of the pro-family conservative agenda. They can try to continue onto their utopian fantasy. But I’m a big stumbling block in their agenda. I’m not going shut up. The things I have to say need to be said.”

“Boink – that’s the end of it”

SMUG’s case against Lively is up against more than the potentially tenuous connection between speech and action. A different lawsuit before the Supreme Court could effectively deem SMUG v. Lively obsolete.

In Kiobel v. Royal Dutch Petroleum Inc., the plaintiff uses the Alien Tort Statute to accuse an oil company of cooperating with the Nigerian government to violently oppress members of the Ogoni people, an ethnic minority in Nigeria. This case is not very different from dozens of other cases brought under the Alien Tort Statute over the past 30 years. What is different, though, is the court’s response. The Supreme Court now questions if the Alien Tort Statue can actually be used in cases that occur on foreign soil.

U.S. Secretary of State Hillary Clinton applauds members of the Civil Society Coalition for Human Rights and Constitutional Law after presenting the Secretary of State’s 2011 Human Rights Defender Award to them at the U.S. Embassy in Kampala, Uganda August 3, 2012. (Reuters/Jacquelyn Martin/Pool)

If the Supreme Court decides this is the case, Judge Ponsor says, it will effectively be overturning 30 years of decisions. He’s reluctant to make a decision that could be overturned a few weeks later by the Supreme Court.

“I could spend an entire two weeks drafting a brilliant opinion,” said Ponsor, “and the Supreme Court could go boink and that’s the end of it.”

As you might guess, the plaintiff encourages the judge to move ahead with his decision.

“I fully appreciate the Court’s concern,” said Spees, “and at the same time would just say…that there’s a sincere and very sort of grave interest in the outcome of this case [in Uganda] given the ongoing situation of Mr. Lively’s involvement.”

Whatever the outcome of SMUG v. Lively, LGBTI Ugandans are trying to bring attention to their increasingly desperate situation. If the Ugandan parliament passes the Anti-Homosexuality Bill, that attention may come for reasons they would rather avoid.