On Wednesday, August 14th Judge Michael Ponsor (D.Ct. Mass) ruled on a motion to dismiss a complaint brought by Sexual Minorities of Uganda (SMUG), a Uganda-based coalition of LGBTI rights and advocacy groups, against Scott Lively, President of Abiding Truth Ministries, charging him with violating international law by inciting the persecution of homosexuals in Uganda. This is the first known Alien Tort Statute (ATS) case seeking accountability for persecution on the basis of sexual orientation and gender identity, and the judge’s decision reaffirms the viability of the ATS as a tool to reach illegal behavior of U.S. nationals in other countries after the S.Ct. significantly narrowed the reach of the ATS last term in Kiobel v. v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013).
The judge’s decision on the motion to dismiss is here.
The case is brought under the Alien Tort Statute (“ATS”), 28 U.S.C. §1350, which provides federal jurisdiction for “any civil action by an alien, for a tort only, committed in violation of the law of nations or a treaty of the United States.” United States Supreme Court has affirmed the use of the ATS as a remedy for serious violations of international law norms that are widely accepted and clearly defined. Persecution, as a crime against humanity that is universally proscribed and clearly defined in international law, is such a violation. Persecution is defined in international law as the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.”
The judge ruled that persecution on the basis of sexual orientation and gender identity is a crime against humanity and that the fundamental human rights of LGBTI people are protected under international law. The ruling means that the case brought by the Center for Constitutional Rights on behalf of SMUG can move forward over defendant Scott Lively’s request to dismiss the lawsuit.
“Widespread, systematic persecution of LGBTI people constitutes a crime against humanity that unquestionably violates international norms,” said Judge Michael Ponsor. “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. 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 lawsuit alleges that Lively’s actions over the past decade, in collaboration with key Ugandan government officials and religious leaders, are responsible for depriving LGBTI Ugandans of their fundamental human rights based solely on their identity, which is the definition of persecution under international law and is deemed a crime against humanity. This effort bore fruit most notably in the introduction of the notorious Anti-Homosexuality Bill (aka the Kill the Gays bill), which Lively helped engineer.
Lively has also been active in countries like Russia where a new law criminalizing gay rights advocacy was recently passed. In 2007, Lively toured 50 cities in Russia recommending some of the measures that are now law.
“Today’s ruling is a significant victory for human rights everywhere but most especially for LGBTI Ugandans who are seeking accountability from those orchestrating our persecution,” said Frank Mugisha, the director of SMUG.
Said CCR Attorney Pam Spees, “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. Lively’s single-minded campaign has worked to criminalize their very existence, strip away their fundamental rights and threaten their physical safety.”
The Complaint in the case is here.