Yesterday, I and about 40 others crammed into the Springfield, MA, office of Arise for Social Justice, fresh from the first oral hearing of the lawsuit brought by Ugandan gay rights activists against Scott Lively–the notorious holocaust revisionist who, as PRA broke in 2009, traveled to Uganda to promote the virulent homophobia that lead to the “kill the gays” bill. A delegation from Uganda, attorneys and staff from the Center for Constitutional Rights (CCR), and local supporters celebrated that whatever the suit’s outcome, Lively was being held to account.
The suit by Sexual Minorities of Uganda (SMUG), filed last spring with the aid of CCR, hinges on the Alien Tort Statute, which allows foreign victims of crimes under international law access to American courts. In recent decades, the law has been used by human rights activists on behalf of victims of governments, multinational corporations, and other private actors; however, SMUG vs. Lively is unprecedented as the first case such case brought to protect LGBTQ rights.
Scott Lively, who lives in Springfield, is accused of the crime of “persecution” as defined under international law by systematically seeking to deprive people of their fundamental rights not only of life, but of equality under the law including equal rights of speech, assembly, and association. Persecution is defined here as the “severe deprivation of fundamental rights” on the basis of identity, a “crime against humanity.”
Lively’s teaching that LBGTQ people are, among other things, predatory pedophiles has fueled rage against people not because of what they have done, but because of who they are. Even though Uganda’s Anti-Homosexuality Bill has not yet (and may never be) passed, CCR argues that both government officials and private groups are acting as though it has. SMUG members and those they represent live in fear of their lives and possible arrest, receive death threats, and are excluded from HIV-related education and health services. Meetings are raided and leaders and attendees rounded-up and arrested.
CCR attorney Pamela Spees claims that since Lively first came to Uganda in 2002, no one has done more to strip away human rights protections for LGBTQ people. And although he was not present, as Liberty Counsel attorney Horatio G. Mihet argued, when specific criminal acts were perpetrated, nor did he personally oversee the crimes, he participated in a wide-ranging conspiracy from which these crimes resulted. Spees described him as as a “strategist” and an “architect.” (Jim Burroway’s profile of Lively for The Public Eye details his infamous record.)
Yesterday’s hearing involved Lively’s Motion to Dismiss, filed by his legal representation, the Christian Right organization the Liberty Counsel. “This lawsuit against Rev. Scott Lively,” Mathew Staver, Founder and Chairman of the Liberty Counsel, declared in a press release, “is a gross attempt to use a vague international law to silence, and eventually criminalize, speech by U.S. citizens on homosexuality and moral issues. This suit should cause everyone to be concerned, because it a direct threat against freedom of speech.” The main issue under U.S. District Court Judge Michael Ponsor’s active consideration is whether the Lively’s First Amendment rights have crossed over into persecutory deprivation of the rights of others.
Simultaneously, a case currently before the Supreme Court may disallow this kind of suit, making the case moot. However, if Judge Ponsor decides to let the case go forward anyway, and the Supreme Court does not invalidate foreign human rights suits under the Alien Tort Statute, it will easily become one of the most significant human rights cases of our time.
The suit made for major international news when filed last Spring, including a major story in The New York Times. But yesterday’s hearing attracted only front page coverage in the local Springfield Republican and little mainstream attention. (I will be writing more about this for Religion Dispatches, so stay tuned.)