On March 14, Sexual Minorities Uganda (SMUG) filed a U.S. federal lawsuit against American Minister Scott Lively, using the Alien Torts Statute (A.T.S.). The ATS allows for non-citizens to launch US court actions for violations of international law.

SMUG accuses Lively of collaborating with four named Ugandan co-conspirators (conservative evangelicals Martin Ssempa and Stephen Langa, Member of Parliament David Bahati, and the current Minister of Ethics and Integrity James Buturo) to create an enabling environment for persecution and violence against gays and lesbians in Uganda. Lively is also accused of directly contributing to the infamous 2009 “Kill the Gays” bill which never came to a vote. In February, however, Bahati reintroduced the legislation.

The Case Against Lively

In the legal brief, SMUG testifies to having experienced severe discrimination:

…in virtually every meaningful aspect of their civil and political lives; their association has been criminalised; their advocacy on issues central to their health and political participation has been suppressed and punished; and they have been subjected to cruel, inhuman, and degrading treatment. As a result, many individual members of SMUG and its constituent organisations live in persistent fear of harassment, arbitrary arrest and physical harm, including death.

SMUG and its U.S. partner, the Center for Constitutional Rights, track Lively’s involvement in fomenting an environment of persecution since his first visit to Uganda in 2002, with the campaign against homosexuality drastically increasing following the December 2008 landmark ruling by the High Court of Uganda that gays and lesbians had the right to basic protection of law. Lively’s accused co-conspirator Stephen Langa rapidly organized the March 2009 “Seminar on Exposing the Homosexual Agenda,” which prominently featured Lively. Langa received support from fellow American evangelicals Don Schmierer and Caleb Lee Brundidge.

Lively’s remarks largely revolved around three areas:

• Comparing Gays to the Nazis and Rwandan Genocidaires: Lively drew heavily from his previous work, The Pink Swastika: Homosexuality in the Nazi Party (Founders Publishing, 1995), in which he attributes the Holocaust to a “supermacho” gay fascist movement. He stated to his audience that gays are “so far from normalcy that they’re killers … sociopaths. This is the kind of person it takes to run a gas chamber or to do a mass murder—you know like the Rwandan stuff, probably involved these guys.”
• Correlating Gay Sexual Identity with Pedophilia: Lively insinuated that there was a correlation between gay sexual identity with child sexual abuse, saying that Westerners in the country were coercing teenagers into exploitative relationships and that, for some “predatory” gays, children have a “flashing neon sign over their heads.”
• Emphasizing the Need to Circumscribe Gay Civil Rights: Lively sees gays and LGBT advocates as the “most dangerous social and political movement of our time.” In 2010 Lively stated that his work in Uganda was influenced by his 2007 book Redeeming the Rainbow(Veritas Aeternas Press, 2009), where he proposes criminalizing L.G.B.T. advocacy and ending anti-discrimination laws. Anti-gay legislation already existed in Uganda. (Many pieces of anti-gay legislation in Africa are actually relics of British common law.) Rarely enforced, the spirit of these laws has extendedto other legislationin Uganda, such as the Equal Opportunities Bill, which excludes sexual minorities from accessing the Equal Opportunities Commission as a mechanism when discriminated against.

Homophobia is a huge problem, but the hatred does not apply universally. Support for gay rights, unfortunately, can be muffled. As one Ugandan Muslim taxi driver stated,“I can defend them. But I fear what? The police, the government. They can arrest you and put you in the safe house, and for me, I don’t have any lawyer who can help me.” In February 2012, a meeting of Freedom and Roam Uganda was shut down in the city of Entebbe in central Uganda, with one Ugandan Minister stating that“we tolerate them, we give them liberty and freedom to do their business, but we don’t like them to organize and associate.”

Immediately after the conference, Lively’s four co-conspirators began making sensationalized statements about the threat gays posed to children (unfortunately, abuse is already an incredibly salient issue in Ugandan media) and the Anti-Homosexuality Bill (referred here on out as “the Bill”) was introduced the following month by Bahati. The first version proposed to make “aggravated” homosexuality (when one partner is HIV positive, under 18, or is a “repeat offender”) a capital offense and homosexual activity subject to life imprisonment.

The Aftermath

The vitriol of Lively’s conference and its application to salient issues in Uganda—concerns about the relationship between the state and Western aid and the construction of homosexuality as “un-African”—ignited the already restrictive environment for gays. Though “outing” campaigns had happened before, they took on new dimensions. In cases where mobs formed exposing gay couples in their home, police often intervened to disperse the mob and then arrest the accused couple. Many Ugandans who have applied for asylum elsewhere have reported sexual abuse while in police custody. One young lesbian reported that “most times when you’re an L.G.B.T. person in Uganda you realize the only option is to run away from home because they will be the first people to disown you. So you disown yourself.”

The most prominent outing campaign occurred in the October 2-9, 2010 issue of the short-lived Rolling Stone newspaper, whose founders were allegedly connected to Ssempa. The newspaper’s cover featured a banner reading “Hang Them: They Are After Our Kids” with a picture of SMUG Advocacy Officer David Kato below. In a suit brought by the Civil Society Coalition on Human Rights and Constitutional Law (representing Kato and two other prominent L.G.B.T. activists) a High Court Judge ruled in December 2010 that the story had violated constitutional rights to privacy and dignity. In mid-January 2011, Kato was bludgeoned to death in his home.

Like its predecessor tabled in 2010, the current 2012 draft of the Bill has dropped capital sentencing but reportedly still seeks to expand criminal penalties from 14 years to life in prison. Some details on the exact content of the bill remain unclear.

The Response from Lively and His Supporters

In the aftermath of criticism of the Bill and SMUG’s court filing, Lively and his supporters have attempted to absolve him of all complicity. Lively also wrote to the Ugandan Parliament through Ssempa opposing the inclusion of capital punishment and emphasizing rehabilitative therapy for convicted gays and lesbians. His concerns were largely strategic and motivated to detract Western attention from the Bill while garnering public sympathy; Uganda dropping capital sentencing would be a “valuable concession.” Other arguments he presents in his letter appear to be contradictory to his remarks at the 2009 Conference, where he made little distinction between gays who do not disclose their identity and individuals who engage in advocacy and are members of the “homosexual agenda” and seek to “recruit” others. Lively criticized the Bill’s proposed criminal penalties for failure to report gays (under Article 14 individuals are required to report L.G.B.T. persons to the police within 24 hours of learning of their identity or face fines and imprisonment of up to the three years) as being too vague and targeting gays who are private and don’t seek to “legitimize their lifestyle” in society. Lively suggested modifying the Bill’s reporting requirements to target recruitment of young people into the “gay movement” by mirroring child abuse reporting legislation in the U.S.: Reporting would be mandatory for anyone with knowledge of gays under the age of twenty-five. According to Lively, this would virtually stop all recruitment because individuals are normally set in their heterosexual identities by their mid-twenties. This would also function similar to “Don’t Ask, Don’t Tell” in the U.S., where gays above 25 would remain subject to the law but not actively pursued if they are discrete about their lifestyle.

It is possible that Lively’s letter was mainly intended to shield Lively from domestic criticism. Tellingly, however, he has not condemned the spirit of the Bill, stating in June 2011 that “if the offending sections were sufficiently modified, the proposed law would represent an encouraging step in the right direction.” He called the Bill itself the “lesser of two evils,” though it is unclear if he is referring to it with the capital clauses included. Lively responded to the SMUG case by questioning how “truth became a crime against humanity;” Mass Resistance, a Massachusetts-based socially conservative organization, responded to SMUG’s lawsuit by saying that “the bill was brought up twice, but never passed” (it’s actually now three times), as if the mere failure of the Bill indicated that the “climate of hatred and persecution” cited by SMUG and refuted by Ugandan public officials occurred in a vacuum, without linking the Bill to resistance to Western aid, domestic Ugandan politics, exportation of American culture wars, and the politicization of homophobia.

Mass Resistance also states there are “disturbing racist elements to accusations,” with the “strong rhetoric condemning Lively implying that a black Ugandan would not have acted in that way unless a white man from America led them to do it.” This argument has elements of truth in it, but has much less to do with race and power than it does to do with funding. The portrayal of homosexuality as imposed by the West is also about resistance to Western aid. In a must-read report by Reverend Kapya Kaoma (who was also present at the 2009 conference) called “Globalising the Culture Wars: US Conservatives, African Churches, and Homophobia,” Kaoma details the increased involvement of far right-wing American evangelicals in Africa as they enlisted African church leaders to help cooperate in the U.S. culture wars. Socially conservative American evangelicals who may hold more conservative views than the “mainline” views held by their churches depend on African religious leaders to help legitimize their positions. This is of increasing influence as social values are also used to unite voters in U.S. politics. As the demographic center of Christianity shifts from the global North to the global South, Africa’s influence within Christian churches has increased. A 2001–04 internal policy document from the Institute on Religion and Democracy cited by Kaoma calls for direct connections with orthodox churches in Africa, exposing the pro-gay biases held by more “mainline” churches, and pushing for the dismantling of the U.S. National Council of Churches.

Traditionally, evangelical African churches have been biblically orthodox but held progressive views on social issues, making them a more natural partner for liberal Western churches. Their orthodoxy provided U.S. conservative evangelicals with a valuable opportunity, and “mainline” U.S. denominations have largely been cast in Africa as imperialistic and without moral grounding, when in reality they have long supported social justice issues. In some cases, powerful U.S. evangelical leaders successfully persuaded African religious leaders to reject funding from “mainline” U.S. churches by presenting themselves as the true representatives of American Christian views and loosening requirements around the documentation of expenses.

Tragically, Kato’s death has largely been dismissed by Lively and his supporters, who claim that Kato was killed by a male prostitute that he refused to pay. The police later delinked Kato’s death from his activismand his killer was sentenced to thirty years in prison. Speaking about the caseand Kato’s death, Lively states that “it is paranoid to interpret reasonable views as hate,” as if the L.G.B.T. Ugandans that have left Uganda since the conference and following Kato’s death are coincidental.

As much as the case resonates for L.G.B.T. advocates, it also raises important questions about power and free speech. Liberty Counsel, who is defending Lively, states: “the suit should cause everyone to be concerned, because it is a direct threat against freedom of speech.”

At the heart of the SMUG v. Lively case is the open exercise of civil and political rights; for L.G.B.T. activists and members of the gay community in Uganda to have equal rights before the law and the freedom to live without fear; and what Lively perceives as his right to the freedom of expression, even if his views are perceived as hateful to some. If they looked a little deeper, Lively and his supporters may find that they are not so different from their gay opposition after all.