A federal judge has refused to dismiss a Ugandan gay rights organization's lawsuit accusing a Springfield, Mass., lawyer and minister for fostering repression in Uganda.
In Sexual Minorities Uganda v. Lively, Senior U.S. District Judge Michael Ponsor on Wednesday denied Scott Lively's motions to dismiss three federal Alien Tort Statute claims plus Massachusetts state law civil conspiracy and negligence claims.
The Ugandan umbrella organization, which advocates for the rights of lesbian, gay, bisexual, transgender and intersex people, sued in March 2012.
In a 79-page ruling, Ponsor wrote that Lively's role is "alleged to be analogous to that of an upper-level manager or leader of a criminal enterprise." Lively's alleged planning and management of Uganda's repression campaign "are analogous to a terrorist designing and manufacturing a bomb in this country, which he then mails to Uganda with the intent that it explode there."
The organization seeks compensatory, punitive and exemplary damages; a declaration that Lively's conduct has violated the law of nations; and an injunction barring him from further oppressive conduct.
The complaint claims Lively spent a decade influencing Ugandan religious and governmental leaders to harass and intimidate homosexuals. He traveled to Uganda in 2002 and 2009 for speaking engagements denouncing homosexuality, it says. And during one of his two 2009 trips, he allegedly worked to advance an anti-homosexuality bill which ultimately did not pass in parliament.
The organization alleged that Lively within the United States influenced his Ugandan contacts from 2002 to 2009 and reviewed and commented on a draft of the bill. His influence spurred media outings of homosexual people, police harassment and raids of advocates' gatherings, it said; gay rights activists were forced to leave Uganda or go into hiding and that it was refused nongovernmental organization status.
Ponsor distinguished the case from the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum this year, which restricted the applicability of the Alien Tort Statute to human rights crimes committed outside U.S. borders.
"The restrictions [in Kiobel] do not apply to the facts as alleged in this case, where Defendant is a citizen of the United States and where his offensive conduct is alleged to have occurred, in substantial part, within this country. Indeed, Defendant, according to the Amended Complaint, is alleged to have maintained what amounts to a kind of 'Homophobia Central' in Springfield, Massachusetts," Ponsor wrote.
"Aiding and abetting a crime against humanity is a well- established offense under customary international law, and actions for redress of this crime have frequently been recognized by American courts as part of the subclass of lawsuits for which the ATS furnishes jurisdiction," he noted.
It was the first ruling recognizing that consistent and widespread discrimination against homosexual minorities can constitute a crime against humanity, said Jeena Shah, international human rights attorney at the Center for Constitutional Rights in New York, which represents the plaintiff.
"That being considered one of the most serious violations of international law is something you haven't seen anywhere in the world," Shah said.
Luke Ryan of Sasson Turnbull Ryan & Hoose in Northampton, Mass. also represents the plaintiff organization.
Horatio Mihet, a senior litigation counsel at the Liberty Counsel, an Orlando, Fla.-based Christian advocacy group, said via email that Lively was admitted to the practice of law in the past, "but has not practiced law in some time." He was uncertain whether he holds an active license.
Lively and his lawyers believe the plaintiff's claims are "firmly foreclosed" by the First Amendment and Kiobel, Mihet argued.
"We are still reviewing the Court's ruling, and will continue to vigorously defend Mr. Lively's constitutional rights," Mihet wrote.
Philip Moran, a Salem, Mass. attorney, also represents Lively.
Sheri Qualters can be contacted at email@example.com.