What could be more boring to Americans than the latest news about a lawsuit brought by a group of political activists in Uganda? Especially since the case is currently in the mind-numbingly boring stage of endless interrogatories and depositions?
But this is no ordinary case.
The defendant, Pastor Scott Lively of Abiding Truth Ministries, says Americans need to be paying very close attention, because the outcome could well set a new precedent – that an international agenda based on anti-biblical standards could trump the U.S. Constitution’s freedom of speech and religion.
While the case’s current back-and-forth questions and answers will last another year, during which time an appellate court could intervene, Lively told WND the dispute is over whether a pastor can publicly criticize behavior that the Bible also criticizes.
U.S. District Judge Michael Posner has allowed to proceed a case brought against Lively by an African group called Sexual Minorities Uganda, or SMUG.
SMUG demands Lively be punished for criticizing homosexuality, calling his speech a “crime against humanity” in violation of “international law.” The plaintiffs allege the Alien Tort Statute in the United States allows them to make the charge in a U.S. court.
But Lively’s attorney, Horatio Mihet of Liberty Counsel, says his client’s preaching is protected by the Constitution.
“We believe SMUG’s claims are firmly foreclosed, not only by the First Amendment right to free speech, but also by the Supreme Court’s recent decision in Kiobel, which eliminated Alien Tort Statute claims for events that allegedly occurred in foreign nations,” he said.
Yet, Posner took nearly 80 pages to say that he thought SMUG’s allegations were substantive and needed to be adjudicated.
Appearing to side with the gay-rights plaintiffs, the judge writes that while SMUG is made up of groups “that advocate for the fair and equal treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) people,” Lively is an “American citizen residing in Springfield, Mass., who, according to the complaint, holds himself out to be an expert on what he terms the ‘gay movement.’”
Posner goes on to cite “many authorities” who “implicitly support the principle that widespread, systematic persecution of individuals based on their sexual orientation and gender identity constitutes a crime against humanity.”
Arguing that concluding Lively’s statements are protected under the First Amendment was “premature,” the judge further wrote: “Indeed, defendant, according to the amended complaint, is alleged to have maintained what amounts to a kind of ‘Homophobia Central” in Springfield. He has allegedly supported and actively participated in worldwide initiatives, with a substantial focus on Uganda, aimed at repressing free expression by LGBTI groups, destroying the organizations that support them, intimidating LGBTI individuals, and even criminalizing the very status of being lesbian or gay.”
Lively sought to have the complaint dismissed when the U.S. Supreme Court ruled, in Kiobel v. Royal Dutch Petroleum, that the Alien Tort Statute doesn’t apply to foreign territory and that the law cannot be used to challenge foreign conduct in courts in the United States.
Mihet sums up the heart of the case against Lively as being the belief that First Amendment free speech protections should play second fiddle to an international consensus that criticism of homosexuality is criminal.
Mihet told WND he has argued all along that the lawsuit was precluded by the First Amendment, which puts the U.S. Constitution higher than international law.
The case against Lively claims that by speaking his opinion in opposition to homosexuality, he was conspiring to deprive the plaintiffs of their fundamental rights. Mihet explained that although SMUG would allow people to express an opinion against homosexuality, if expressing that opinion causes anyone else to take any action, a crime might be committed.
Under that precedent, he said, someone petitioning in opposition to special designations for homosexuals would become an international human rights criminal. Likewise, those who worked to support Proposition 8 in California, the proposed state constitutional amendment limiting marriage to one man and one woman, would be subject to prosecution, he said.
It also would target those who are working to defeat the ENDA plan in Congress, which creates certain special protections for homosexuals in the workplace.
“All of those become criminals overnight under this theory of liability,” Mihat said.
Bottom line, SMUG’s attack on Lively goes directly to the supremacy and portability of the U.S. Constitution, say Lively’s attorneys.
“SMUG asks this United States court to punish one of its citizens, Mr. Lively, for ‘crimes against humanity’ under an international treaty that the United States has expressly rejected,” a court filing opposing SMUG’s case explained.
“Moreover, what SMUG cavalierly and conclusorily labels as ‘crimes against humanity’ – the most heinous of crimes – is actually nothing more than civil, non-violent political discourse in the public square on a subject of great public concern, which occupies the highest rung of First Amendment protection,” the brief said.
The extreme legal action was prompted by Lively “sharing his biblical views on homosexuality during a 2009 visit to Uganda.”
While there may have been some actions in Uganda against homosexuals, Liberty Counsel said, “SMUG alleges no plausible connection between Mr. Lively and the actual perpetrators of those alleged violent acts, and, indeed, Mr. Lively’s name is not mentioned one single time within the many pages of the complaint that describe those six events.”
SMUG is represented by the George Soros-funded Center for Constitutional Rights in New York, which the New York Times described as left-leaning.
“[The Alien Tort Statute] is not a blanket delegation of lawmaking to the democratically unaccountable international community,” said Mathew Staver, Liberty Counsel founder. “Like all American citizens, Rev. Lively enjoys a fundamental First Amendment right to engage in nonviolent political discourses anywhere in the world.”
In addition, Liberty Counsel contends the case against Lively has some glaring holes.
“SMUG also does not tell the court that David Kato – the murdered Ugandan activist whom SMUG makes the centerpiece of this lawsuit – was killed not by an enraged homophobe incited by Mr. Lively’s protected speech, but by a homosexual prostitute upset over a failed business transaction,” the organization said.
“Neither does SMUG tell the court that the confessed perpetrator of this horrible crime was tried and convicted in Ugandan courts, and is now serving a 30-year prison sentence.”
Finally, said Liberty Counsel SMUG “does not tell the court that, far from inciting violence, Mr. Lively has consistently condemned acts of violence and calls to violence in the strongest possible terms, and has praised the Ugandan courts for imparting justice.”