Virulently anti-LGBTQ minister Scott Lively is declaring victory in the lawsuit brought against him by Ugandan activists for spreading his hate overseas – but it’s complicated.
Lively wanted the U.S. Court of Appeals for the First Circuit to remove condemnatory language about his homophobia from a lower court’s ruling, which the appeals court declined to do. But he is claiming a win because the appeals court said this language is not legally binding.
The Boston-based First Circuit Friday dismissed Lively’s appeal of U.S. District Judge Michael A. Ponsor’s ruling in the case, partly on the grounds that the appeals court did not have jurisdiction in the matter, The Boston Globe reports. Ponsor last year dismissed the case, in which Sexual Minorities Uganda, or SMUG, accused Lively of international human rights violations. He said the case was not eligible to be heard in federal court, but in his ruling he took the opportunity to denounce Lively’s bigoted statements and writings, which include the assertions that gay men were in charge of Germany’s Nazi Party, that pedophilia is at the core of the LGBTQ movement, and that perpetrators of antigay violence in Russia are not straight homophobes but “butch” gays who attack their more effeminate counterparts.
SMUG had sued Lively in 2012 in federal court in Springfield, Mass., where he is based. The group alleged that Lively had committed human rights violations by giving anti-LGBTQ speeches during visits to Uganda; SMUG blamed his rhetoric for the passage of a law providing for life prison sentences for Ugandans convicted of having gay sex under certain circumstances. The law has since been struck down by a Ugandan court.
Ponsor dismissed the suit because, he said, his court did not have jurisdiction in the matter, similar to what the appeals court ruled last week. “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,” the Globe reports.
But Ponsor’s ruling condemned the minister’s bigotry in no uncertain terms. Lively’s “positions on LGBTI people range from the ludicrous to the abhorrent,” Ponsor wrote. He added 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 appealing the ruling, Lively contended that if Ponsor did not have jurisdiction over the case, he did not have the authority to offer opinions on the issues involved. The appeals court declined to remove this language from the lower court’s ruling, but First Circuit Judge Bruce M. Selya wrote in a footnote that Ponsor’s statements “should not be accorded any binding effect in future litigation between the parties.”
This led Lively and his attorneys to claim a victory. “We would have preferred for the Court of Appeals to actually strike the statements from the court’s record,” Liberty Counsel lawyer Horatio G. Mihet told the Globe 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.” And Lively called the First Circuit’s ruling “the resounding, grand-slam, home-run victory I’ve been waiting for.”
But Center for Constitutional Rights lawyer Pamela C. Spees, who is heading SMUG’s legal team, said it’s no win for Lively. The minister and his lawyers “clearly wanted the language taken out,” she told the Globe. “It stayed in the [lower court] opinion. 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 comments about Lively’s homophobia were not legally binding. SMUG is considering whether to sue Lively in state court, she added.
SMUG executive director Frank Mugisha said the appeals court’s ruling is also a victory for his group. “We have made the record of Lively’s persecution [of LGBTQ people] clear through this case,” he told the Boston paper.
Meanwhile, Lively is again in a long-shot campaign to become governor of Massachusetts. He ran as a third-party candidate in 2014, receiving just 1 percent of the vote. This year he is seeking the Republican Party’s nomination, challenging incumbent Charlie Baker in the primary, which will be held September 4.