Critics of President Obama long have accused him, not without considerable evidence, of wanting to make the United States and its Constitution subservient to international precedents and practices on issues like guns, marriage, gender orientation, the use of fossil fuels, “clean” energy and more.
Now a fight is developing that could determine whether international law can be used to torpedo the First Amendment of the United States’ founding document.
On American soil.
The case is Sexual Minorities of Uganda (SMUG) vs. American minister, speaker and advocate Scott Lively, of Abiding Truth Ministries, and specifically charges that Lively’s comments about homosexuality are “crimes against humanity” and are forbidden under international law.
The result could hit hard at the freedom Americans have under the First Amendment.
“And not just for Americans traveling overseas,” explained Harry Mihet, an executive for Liberty Counsel and the attorney coordinating the fight against SMUG.
Under SMUG’s demands, there would be penalties “for engaging in First Amendment free speech right here at home,” he said.
“SMUG claims any effort to deprive homosexuals of ‘fundamental rights’ amounts to crimes against humanity under their so-called laws,” he told WND. “Their claim is that international law trumps the U.S. Constitution.”
SMUG is demanding punishment for Lively for advocating on behalf of family values as part of his ministry, simply through speech, he said.
“If this court can do that, then there would be nothing [that could prevent] courts from punishing any American who is engaged in a petition to place a marriage amendment on a state ballot, or in opposition to a bill, for example, in Congress expanding protections for homosexuals in the area of employment.
“A whole host of advocacy here in the United States is at risk of being criminalized under the bizarre theory that SMUG is advancing,” he explained.
The next move in the case will be depositions for Lively over the next few days. Eventually there could be discovery and even a trial, if the agenda is not thwarted sooner by the judiciary.
“Scott Lively has done nothing other than to exercise his First Amendment right to free speech … which protects Americans not only in the United States but anywhere they happen to be in the world. Americans don’t check their constitutional rights at the airport to be lost with their luggage. It travels with them and the First Amendment traveled with Scott Lively to Uganda,” Mihet said.
WND previously has reported on the circumstances that gave rise to SMUG’s challenge to America’s First Amendment. Lively had visited Uganda and exchanged ideas about homosexuality with leaders there. SMUG sued.
Then a year ago, U.S. District Judge Michael Ponsor let continue the case in which SMUG alleges the Alien tort Statute in the U.S. allows them to bring their complaint.
Ponsor 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 wrote 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.'”
Ponsor cited “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 said: “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.”
The case against Lively claims that by speaking his opinion in opposition to homosexuality, he was conspiring to deprive SMUG members of their fundamental rights
Attorneys representing Lively have argued to the court, “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.
“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.
For example, SMUG alleged that statements such as those by Lively prompted the murder of a Ugandan homosexual activist, David Kato.
“SMUG … 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.”
Mihet told WND the whole point of the case may be the international renown acquired for SMUG.
“This case, logically and constitutionally, should have never see the light of day,” he told WND. “One other interesting tidbit: SMUG’s leaders have readily acknowledged that this case is … about the advocacy they’ve been able to do around it.”