Lively’s lawyers from Liberty Counsel tried to argue that the whole suit is preposterous, not just because it punishes the pastor for protected First Amendment speech, but also because the Supreme Court’s recent decision in Kiobel v. Royal Dutch Petroleum, precludes Alien Tort Statute claims for events occurring in foreign nations. Judge Ponsor found that this case differed from Kiobel because Lively is a U.S. citizen and most of his advocacy work occurred here in the United States. “Indeed,” writes Ponsor, “Lively is alleged to have maintained what amounts to a kind of ‘Homophobia Central’ in Springfield, Massachusetts.” He finds that the extraterritorial restrictions set forth in Kiobel don’t apply when the defendant and his most of his conduct are based in the USA.
Lively has claimed that his words were all taken out of context. “Most of the ostensibly inflammatory comments attributed to me are from selectively edited video clips of my 2009 seminars in Kampala,” he told the Guardian last year. “I challenge the plaintiffs and their allies to publish the complete footage of the seminar on the internet. They will not do this or their duplicity would be exposed.”
But Judge Ponsor seems to have read the spots off the complaint. He goes through the detailed travel and contacts arranged between Lively and several others alleged to be leaders in Uganda’s anti-gay initiative. Ponsor details the many speeches, seminars, and events laid out in the complaint, at which Lively, by his own admission, was “instrumental in the efforts . . . not only to create a rhetorical platform for Uganda’s anti-LGBTI campaign of persecution, but to craft specific initiatives designed to repress and intimidate LGBTI people and organizations advocating on their behalf.” According to the complaint, Lively also published two books that “presented a comprehensive plan of action designed to repress the so-called ‘gay movement,’ “ which he described as “the most dangerous social and political movement of our time.” The two proposed steps were “criminalizing advocacy – that is, subjecting any public expressions of support for the LGBTI community to criminal prosecution – and attributing to LGBTI individuals a compulsion to sexually abuse children.” Lively acknowledges that he read and commented on a draft of the 2009 “Kill the Gays” legislation. Soon after, and while the bill was still pending in Parliament, harassment and abuse of LGBT Ugandans increased significantly.
Judge Ponsor dismisses out of hand Lively’s argument that “because LGBTI people suffer discrimination in many countries, acts of persecution committed by him against this community cannot be viewed as violating international norms.” He calls the whole argument “specious” and finds that “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.”