Uganda v. Lively

• Citation: 960 F.Supp.2d 304
• Decision Date: 14 August 2013
• Docket Number: C.A. No. 12–cv–30051–MAP.
• Parties: SEXUAL MINORITIES UGANDA, Plaintiff v. Scott LIVELY, Defendant.
• Court: U.S. District Court — District of Massachusetts

960 F.Supp.2d 304

SEXUAL MINORITIES UGANDA, Plaintiff

v.Scott LIVELY, Defendant.

C.A. No. 12–cv–30051–MAP.

United States District Court,

D. Massachusetts.

Aug. 14, 2013.

Baher Azmy, Jeena D. Shah, Pamela C. Spees, New York, NY, Luke S. Ryan Sasson, Turnbull & Hoose, Northampton, MA, for Plaintiff.

Stephen M. Crampton, Liberty Counsel, Lynchburg, VA, Horatio G. Mihet, Mathew D. Staver, Liberty Counsel, Orlando, FL, Philip D. Moran, Law Offices of Philip D. Moran, Salem, MA, for Defendant.

MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTIONS TO DISMISS (Dkt. Nos. 21 & 30)

PONSOR, District Judge.

I. INTRODUCTION

Plaintiff Sexual Minorities Uganda is an umbrella organization located in Kampala, Uganda, comprising member organizations that advocate for the fair and equal treatment of lesbian, gay, bisexual, transgender, and intersex (LGBTI) people in that east African country. Defendant Scott Lively is an American citizen residing in Springfield, Massachusetts who, according to the complaint, holds himself out to be an expert on what he terms the “gay movement.” (Dkt. No. 27, Am. Compl. ¶ 1.) Lively is also alleged to be an attorney, author, and evangelical minister.

Plaintiff alleges that in concert with others Defendant—through actions taken both within the United States and in Uganda—has attempted to foment, and to a substantial degree has succeeding in fomenting, an atmosphere of harsh and frightening repression against LGBTI people in Uganda. The complaint asserts five counts, three invoking the jurisdiction of the federal Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), and two under state law. Plaintiff seeks compensatory, punitive, and exemplary damages; declaratory relief holding that Defendant's conduct has been in violation of the law of nations; and injunctive relief enjoining Defendant from undertaking further actions, and from plotting and conspiring with others, to persecute Plaintiff and the LGBTI community in Uganda.

Defendant has filed two motions to dismiss, offering in essence five arguments.¹ First, the court lacks jurisdiction because international norms do not bar persecution based on sexual orientation or gender identity with sufficient clarity and historical lineage to make it one of the narrow set of claims for which the ATS furnishes jurisdiction. Second, the court cannot recognize a claim under the ATS for actions taken outside the United States, as the Supreme Court has recently held in Kiobel v. Royal Dutch Petroleum, –––U.S. ––––, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). Third, Plaintiff lacks standing to bring this case either on behalf of itself as an organization or on behalf of members of the LGBTI community in Uganda. Fourth, the right of free speech described in the First Amendment to the United States Constitution prohibits any attempt by Plaintiff to restrict expression, however distasteful, through court action. Finally, the two claims asserted under Massachusetts state law lack any adequate legal foundation.

For the reasons set forth at length below, none of these arguments is persuasive. As to the first argument, many authorities implicitly support the principle that widespread, systematic persecution of individuals based on their sexual orientation and gender identity constitutes a crime against humanity that violates international norms. It is a somewhat closer question whether this crime constitutes what Justice Souter has termed one of the “relatively modest set of actions alleging violations of the law of nations” for which the ATS furnishes jurisdiction. Sosa v. Alvarez–Machain, 542 U.S. 692, 720, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). However, 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. Given this, the allegations set forth in the Amended Complaint are more than adequate at this stage to require denial of Defendant's motion to dismiss. Moreover, given the elasticity of the legal standard for ATS jurisdiction, it is fairer and more prudent to address the Sosa issue on a fully developed record, following discovery.

Second, the restrictions established in Kiobel on extraterritorial application of the ATS 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. He has allegedly supported and actively participated in worldwide initiatives, with a substantial focus on Uganda, aimed at repressing free expression by LGBTI groups, destroying the organizations that support them, intimidating LGBTI individuals, and even criminalizing the very status of being lesbian or gay.²Kiobel makes clear that its restrictions on extraterritorial application of American law do not apply where a defendant and his or her conduct are based in this country.

Third, clear authority supports Plaintiff's standing here. Fourth, the argument that Defendant's actions have constituted mere expression protected under the First Amendment is, again, premature. Accepting the allegations of the complaint, as the court must at this stage, sufficient facts are alleged, with specific names, dates, and actions, to support the claim that Defendant's behavior crossed well over any protective boundary established by the First Amendment. Fifth, and finally, the arguments attacking the claims under Massachusetts state law have not been convincingly developed. Having denied the motions to dismiss the federal claims, the court will retain the state law claims pending discovery and, if appropriate, reconsider them on a fuller record in connection with a motion for summary judgment.

II. FACTS³

The essence of the claims before the court, expatiated in the Amended Complaint's detailed recitation of allegations, is that Defendant Scott Lively along with others in Uganda devised and carried out a program of persecution aimed at Plaintiff's organization and its members based on their sexual orientation and gender identity. The Amended Complaint describes a campaign of harassment and intimidation, and a resulting atmosphere of fear, that Defendant is alleged, in active concert with others, to have directed at the LGBTI community in Uganda. According to Plaintiff, Defendant helped coordinate, implement, and justify “strategies to dehumanize, demonize, silence, and further criminalize the LGBTI community” in Uganda. (Dkt. No. 27, Am. Compl. ¶ 7.)

The Amended Complaint identifies a group of Ugandans with whom Defendant is alleged to have worked closely to carry out his “decade-long persecutory campaign.” (Dkt. No. 27, Am. Compl. ¶ 25.) These individuals allegedly include:

• Stephen Langa, the Executive Director of the Family Life Network and the Director of the Ugandan branch of the Arizona-based Disciple Nations Alliance;

• Martin Ssempa, Ugandan pastor, involved in implementing Uganda's HIV/AIDS policy from as early as 2003;

• James Buturo, Ugandan Minister of Information and Broadcasting for the President (2001–2006) and Minister of Ethics and Integrity in the Office of the Vice–President (2006–2011);

• David Bahati, member of Parliament and sponsor of legislation entitled the Anti–Homosexuality Bill; and • Simon Lokodo, current Minister of Ethics and Integrity.

According to the Amended Complaint, Defendant came to Uganda in 2002 when he participated in the country's first anti-LGBTI conference. In March 2002, Defendant spoke at a gathering organized by Langa about the supposed links between pornography and homosexuality. Several months later in June 2002, Defendant returned to Uganda to participate in additional speaking events and media appearances organized by Langa. These appearances were designed, again, to headline the purported link between pornography and homosexuality.

During this trip, Defendant and Langa also held an all-day invitation-only pastors' conference. Defendant later wrote that the pastors in attendance “were very grateful for the insights I was able to give them about the way in which America was brought low by homosexual activism.” (Dkt. No. 27, Am. Compl. ¶ 50.) Defendant also addressed students at several universities and high schools where he blamed the so-called “gay movement” for the dangerous effects of a “porn culture.” (Dkt. No. 27, Am. Compl. ¶ 51.) Defendant also met with the Kampala City Council.

Defendant has stated, according to the Amended Complaint, that these appearances and meetings in 2002 made him instrumental in the efforts by Langa and Ssempa, 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. (Dkt. No. 27, Am. Compl. ¶ 56.)

Plaintiff alleges that between 2002 and 2009 Defendant continued to work from the United States with Langa and Ssempa to assist, encourage, and consult with them to design and then carry out specific actions to deny fundamental rights to the LGBTI community in Uganda. During this time, Ssempa was involved in formulating the Ugandan HIV/AIDS policy. In this role, he took action to exclude LGBTI persons from the program's assistance. Ssempa also publicly posted the names of LGBTI rights advocates—labeled as “homosexual promoters”—as well as pictures of them with their contact information, as part of a campaign of intimidation.

For his part, Defendant began developing and disseminating strategies to be used to discriminate against and persecute LGBTI communities in Uganda and elsewhere. In pursuit of this, he published two books, Defend the Family:...