Gay Ugandans Under Fire Can Sue Preacher

     (CN) – Evangelical minister Scott Lively must face claims that he conspired in the persecution of gay and lesbian Ugandans, advocating that they face the death penalty, a federal judge ruled.
     Sexual Minorities Uganda is an umbrella organization whose members advocate for lesbian, gay, bisexual, transgender and intersex (LGBTI) people in the East African country.
     It claims Scott Lively, president of Abiding Truth Ministries and self-described expert on the “gay movement,” has conspired to commit crimes against humanity by persecuting LGBTI people and campaigning for a Ugandan law that would make homosexuality punishable by death. Lively’s ministry is based in Springfield, Mass.
     Lively’s campaign began after the Ugandan High Court affirmed that LGBTI persons enjoy basic protections of the law in 2008.
     Their 2012 complaint states: “Lively’s 2009 work in Uganda and his call to arms to fight against an ‘evil’ and ‘genocidal’, ‘pedophilic’ ‘gay movement’, which he likened to the Nazis and Rwandan murderers, ignited a cultural panic and atmosphere of terror that radically intensified the climate of hatred in which Lively’s goals of persecution could advance. Shortly after Lively’s pivotal 2009 work in Uganda, one member of Parliament expressed, ‘We must exterminate homosexuals before they exterminate society.’
     “Among the shocking, repressive measures undertaken after 2009, is the introduction of the Anti-Homosexuality Bill (also referred to as the ‘Kill the Gays Bill’), which proposed the death penalty for a second conviction of consensual sex between adults of the same gender, and imprisonment for failure to report on others suspected of being ‘homosexual’, and for advocacy in any way on issues related to homosexuality. While Lively has half-heartedly tried to distance himself from the death penalty provision of the bill, he still considers it the ‘lesser of two evils’ as compared to recognizing the humanity of LGBTI individuals or permitting their speech or advocacy.
     “In 2010, a tabloid newspaper – parroting characterizations of gays and lesbians repeatedly made to Ugandan officials by Lively – published an article ‘outing’ SMUG [Sexual Minorities Uganda] advocacy officer David Kato (and others), under the headline, ‘Hang Them’. Four months later, Mr. Kato was bludgeoned to death in his home. On Feb. 14, 2012, a private training on human rights and public health conducted by SMUG and one of its member organizations was raided by Ugandan government officials who declared the gathering ‘illegal’ and called those gathered there ‘terrorists.’ The member organization’s executive director had to flee in order to avoid arrest and detention.”
     Homosexuality in Uganda is currently punishable by up to 14 years in prison.
     On Wednesday, U.S. District Judge Michael Ponsor refused to dismiss the allegations against Lively, permitting the case to move forward.
     “Plaintiff has stated a claim for persecution that amounts to a crime against humanity, based on a systematic and widespread campaign of persecution against LGBTI people in Uganda,” Ponsor wrote. “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.”
     The judge called it “utterly specious” for Lively to argue that his actions did not violate international norms because LGBTI people face discrimination all over the world.
     “The history and current existence of discrimination against LGBTI people is precisely what qualifies them as a distinct targeted group eligible for protection under international law,” Ponsor wrote. “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,” the 79-page opinion said.
     Lively’s alleged conduct additionally may not qualify as free speech because “it is well-established that speech that constitutes criminal aiding and abetting is not protected by the First Amendment,” the judge added.
     Ponsor clarified: “In making this decision, the court is mindful of the chilling effect that can occur when potential tort liability is extended to unpopular opinions that are expressed as part of a public debate on policy. However, at this stage, the amended complaint sets out plausible claims to hold defendant liable for his role in systematic persecution, rather than merely for opinions that plaintiff finds abhorrent.”
     In response to the decision, defense attorney Horatio Mihet told Courthouse News: “We are disappointed that the lawsuit’s been allowed to move forward because we believe that it is foreclosed by the First Amendment and by the Supreme Court’s decision in the Kiobel [v. Royal Dutch Petroleum] case. This was decided in April and the court decided that the Alien Tort Statute cannot be used to bring claims for events that happened outside of the U.S.”
     “We’re still evaluating the court’s opinion, and we’re determined to continue to fight for Mr. Lively’s constitutional rights, and we’re confident that ultimately he will prevail,” Mihet said.
     Mihet works for Liberty Counsel, a firm “dedicated to advancing religious freedom, the sanctity of life, and the family,” according to its website.
     Pam Spees with the Center for Constitutional Rights meanwhile applauded the ruling. “We are gratified that the court recognized the persecution and the gravity of the danger faced by our clients as a result of Scott Lively’s actions,” Spees said in a statement. “Lively’s single-minded campaign has worked to criminalize their very existence, strip away their fundamental rights and threaten their physical safety.”

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