In strange twist, Scott Lively declares victory in Uganda LGBT lawsuit
Springfield pastor and long-shot Republican gubernatorial candidate Scott Lively is declaring victory in his more than six-year fight in federal court against civil charges he conspired to deprive gay people in Uganda of their fundamental human rights.
“This is it. This is the resounding, grand-slam, home-run victory I’ve been waiting for,” Lively said Tuesday — not long after a Boston appeals court dismissed Lively’s appeal of a ruling in his favor.
Yes, you read that right. Lively is crowing after an appeals court dismissed his request for them to tinker with a lower court ruling in his favor.
It is worth unpacking this most unusual legal tale, which has spanned two Lively campaigns for governor — one as an independent in 2014, and one as a Republican this year.
In 2012, a Ugandan gay rights organization filed a lawsuit in Springfield federal court alleging that Lively committed a crime against humanity by participating in a conspiracy to deprive gay people in the East African nation of their fundamental human rights.
The group, Sexual Minorities Uganda — also known by the acronym SMUG — attempted to connect Lively’s visits to the African country, his work with activists and officials, and his speeches there about the “gay movement” being “an evil institution,” to the persecution of gay people. This included, they alleged, subsequent Ugandan legislation that initially would have made certain consensual gay sex acts punishable by death.
After five years of litigation and a voluminous discovery process, US District Judge Michael A. Ponsor dismissed the lawsuit on jurisdictional grounds, ruling in Lively’s favor. He said, based on a 2013 Supreme Court ruling that narrowed the ability of foreigners to seek American court action for human rights violations committed overseas, that Lively’s actions did not meet the legal standard to be heard in federal court.
But the judge also used his ruling to savage the pastor, who is the author of, among publications, “The Pink Swastika: Homosexuality in the Nazi Party,” a revisionist history that alleges the Nazi party was controlled by gay men who hid their sexual orientation.
Ponsor called Lively’s efforts and writings against lesbian, gay, bisexual, transgender, and intersex people “odious” and “crackpot bigotry.”
He wrote that Lively’s “positions on LGBTI people range from the ludicrous to the abhorrent,” and he opined that “the question before the court is not whether Defendant’s actions in aiding and abetting efforts to demonize, intimidate, and injure LGBTI people in Uganda constitute violations of international law. They do.”
In a unique twist, Lively appealed the Ponsor ruling in his favor.
Given that Ponsor decided the court did not have jurisdiction over the matter, Lively argued, the judge did not have the authority to opine on the merit of the underlying allegation — that he aided and abetted a crime against humanity.
On Friday, the US Court of Appeals for the First Circuit dismissed Lively’s appeal in part on jurisdictional grounds.
But in the dismissal of his appeal, the court gave Lively something he wanted.
“The district court did suggest in passing that Lively might have violated international law, but it did so without any meaningful analysis. This suggestion is plainly dictum,” Judge Bruce M. Selya wrote for the court in a footnote. “As a result, it should not be accorded any binding effect in future litigation between the parties.”
Horatio G. Mihet, Lively’s lead attorney from the nonprofit Liberty Counsel, which is representing the pastor free of charge, said that part of the ruling is key.
“We would have preferred for the Court of Appeals to actually strike the statements from the court’s record,” Mihet told the Globe on Tuesday. “We got the next best thing which is a very clear ruling from the First Circuit that Judge Ponsor’s statements have no legal effect whatsoever and cannot be used in any future litigation.”
Pamela C. Spees, the lead attorney for the plaintiffs and a lawyer at the Center for Constitutional Rights, which is representing SMUG for free, scoffed at the idea Lively notched a victory in the appeals court ruling.
“They clearly wanted the language taken out. It stayed in the [lower court] opinion,” she said. “They can spin it all they want, but they didn’t need to take it up on appeal to have it stated” that Ponsor’s thoughts on Lively’s conduct were not a binding legal ruling.
In a statement, SMUG’s executive director, Frank Mugisha, said the case has always been about “doing everything we can to stop the export of hatred into Uganda and to protect our community against the persecution.”
And he claimed a victory of his own. After all the litigation, Mugisha said, “we have made the record of Lively’s persecution clear through this case.”
Yet SMUG’s legal effort may not be over.
Despite Lively’s request to the contrary, neither Ponsor’s 2017 decision nor Friday’s circuit court ruling preclude SMUG from filing a conspiracy claim against Lively in a Massachusetts court under state law.
“The door is still open” to such a suit, said Spees, who said a decision on whether to bring a state civil case would be made within in a year.
Lively is challenging Governor Charlie Baker for the GOP nomination for governor. The primary is Sept. 4.