SMUG Case Threatens US Constitution and Sovereignty

Rebelllion to tyrants image

Earlier this week I wrote an article about the threat that the “Crimes Against Humanity” lawsuit SMUG v Lively poses to the survival of my ministry.

Today I want to address the greater threat posed to the United States Constitution and our national sovereignty by this case.

First, it must be recognized that a central goal of the leftist elites in both major US political parties and the US judiciary is the sublimation of American courts to an emerging globalist judicial system. Increasingly, rulings by our supreme court cite foreign legal norms, consistent with the Socialists’ “Tide of History” metaphor. That agenda is advancing rapidly on many fronts, but none more aggressively than through the misapplication of a 1789 “piracy-on-the-high-seas” law called the Alien Tort Statute (ATS). Its misuse as a weapon of “social justice” was pioneered in the early 1980s by the so-called Center for Constitutional Rights, the Manhattan-based Marxist law firm driving the SMUG litigation against me.

On April 22, 2013, the Supreme Court dealt a setback to that agenda by ruling that Americans cannot be sued in US courts under the ATS for their conduct on foreign soil. Quoting the press release of my attorneys at Liberty Counsel:

“The Supreme Court today held that the federal Alien Tort Statute (ATS) cannot be used to challenge foreign conduct in United States courts. In Kiobel v. Royal Dutch Petroleum, the High Court held that the ATS does not ‘reach conduct occurring in the territory of a foreign sovereign.’ The decision is a severe blow to foreign entities and individuals that have sought to use the ATS – with alarming success in the last three decades – to bring foreign disputes in U.S. courts. These international groups had made a cottage industry out of asking U.S. courts to apply the amorphous and ever-changing dictates of ‘international law,’ even when it conflicts with U.S. law or the United States Constitution.

“Liberty Counsel currently represents Pastor Scott Lively in one such case brought against him by Sexual Minorities Uganda, which calls itself “SMUG.” In its lawsuit, filed in federal court in Massachusetts, SMUG claims that Mr. Lively violated ‘international law’ when he criticized homosexual conduct while visiting Uganda. SMUG is asking the Court to punish a United States citizen for his alleged speech in Uganda – speech that would be entirely protected in the United States. Liberty Counsel had previously asked the Court to dismiss SMUG’s frivolous lawsuit, partly on the grounds that the Alien Tort Statute does not apply to conduct outside the United States.

“The Supreme Court has now accepted Liberty Counsel’s argument and has made it the law of the land. On the basis of the just-issued decision in Kiobel, Liberty Counsel has again asked the Massachusetts federal court to dismiss SMUG’s lawsuit.”

Alarmingly, however, the SMUG v Lively suit survived.  Judge Ponsor ruled in his denial of our Motion to Dismiss that the case should continue, since my alleged conspiracy with Uganda officials to allegedly persecute homosexuals in that country might have been conducted in part on US soil — activity which he compared to a terrorist making a bomb in the US and shipping it to Uganda to be detonated.

Now, to whatever extent Judge Ponsor’s reasoning reflects the beliefs of our federal judiciary as a whole, the Alien Tort Statute is not only alive and well, but more threatening than ever to Americans’ rights to free speech and religious liberty under the US Constitution.

Even more alarming, however, is the fact that the SMUG case relies ultimately on foreign law, specifically Article 7 of the statutes of the International Criminal Court (ICC), based in The Hague, Netherlands. The United States (to the ire of every leftist activist in the western world), is not a party to the Treaty of Rome that established and regulates the ICC. Yet its standards have been allowed in the back door, as it were, in the SMUG case. A SMUG victory would necessarily recognize ICC’s legitimacy in our federal courts, with deeply disturbing implications for all Americans, and for the supremacy of our constitution relative to international treaties.

But it gets worse. In a Motion to Dismiss, the judge must assume that all of the facts alleged by the prosecution are true and then apply the law to those facts. If the facts are insufficient to meet the legal standard, he must dismiss the case for “failure to state a claim upon which relief can be granted.” Judge Ponsor denied our Motion to Dismiss, which means that he had to have concluded that the facts alleged by SMUG did meet the legal standard for “Crimes Against Humanity of Persecution,” Article 7(1)(h), of which I am accused, leaving only the question of whether the alleged facts were true.

The problem is that SMUG alleged only eight incidents of “persecution” by the Ugandan government over a ten year period, with only one of them, the murder of SMUG activist David Kato, remotely approaching the gravity of a Crime Against Humanity. (However, at the time that SMUG filed its lawsuit, Kato’s confessed killer was already serving a 30 year sentence for the crime: a “gay” prostitute whom Kato had bailed out of jail to be his live-in house-boy. It was a garden-variety “gay on gay” murder entirely unrelated to any alleged government campaign of persecution.)

But “Crimes Against Humanity” is a category of the most egregious possible crimes in the civilized world. It was codified in international law to prosecute Nazi officials after WWII for their notorious atrocities — crimes deemed so horrific that they “shocked the conscience of the nations” and justified the rejection of German national sovereignty as a legal defense. (The Nazis had first legalized their atrocities before they committed them.) And the Introduction to Article 7 specifically states that “its provisions…must be strictly construed, taking into account that crimes against humanity as defined in article 7 are among the most serious crimes of concern to the international community as a whole.”

You can read the statute for yourself here:

Click to access ElementsOfCrimesEng.pdf

So, for Judge Ponsor to have concluded that SMUG’s facts met the elements of Article 7(1)(h) of the Rome Treaty, he had to have dramatically broadened and liberalized the scope of the statute, and, importantly, to have extended its protections to homosexuals as a class, since they are not included in the list of protected categories, nor is the denial of civil rights based on sodomy or sexual orientation “universally recognized as impermissible under international law.”

The staggering implication is that commonplace “civil rights violations,” of the sort litigated routinely in major America cities, could suddenly fall within the definition of “Crimes Against Humanity” here in our own country if SMUG prevails. And internationally, the weight of a US Federal Court ruling would be lent to the efforts of the leftist elites to criminalize “homophobia” globally, and deny morally conservative countries around the world the right to oppose the legitimization of sexual perversion in their societies.  It’s the “Holy Grail” of the global LGBT lobby.

It seems quite bizarre to bystanders that I am being sued civilly in America for allegedly violating an International Criminal Court statute by allegedly “conspiring” with Uganda government officials who have not themselves been charged with any crime in the International Criminal Court, and that my “conspiracy“ amounts to preaching Biblical standards of morality that our constitution was expressly written to protect. However, I know that I am not much more than a pawn in a diabolical legal and political strategy to destroy American sovereignty and bring this nation under the authority of a global Socialist government.

They’ve chosen me because I’m relatively powerless and easy to malign.  Politically-speaking, I don’t have “friends in high places” or affiliations with major Christian media or other conservative institutions. But this case deserves far more attention than it has received among American patriots and constitutionalists. SMUG v Lively is really SMUG v America — America as we once knew it before freedom-hating Marxists like the Center for Constitutional Rights came to power.

As a Christian pastor my trust is in Jesus Christ and I know He will bless me for my refusal to surrender to those who hate Him and His Word.  But I am also an American who shares our Founders’ conviction that resistance to tyranny is obedience to God, and I know the threat this case represents to this land I love. My prayer is that the larger conservative movement would become more aware of this case, and it would cause its members to remember and return to the Biblical standards that once served as an impenetrable protective shield around our constitutional rights and national sovereignty.

I would also ask for their support to my ministry, which is standing in the gap and taking the arrows for cause of freedom. Please donate here:

In Him,

Dr. Scott Lively


Article 7 (1) (h)
Crime against humanity of persecution
1. The perpetrator severely deprived, contrary to international law,21 one or more persons of fundamental rights.
2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.
3. Such targeting was based on political, racial, national, ethnic, cultural, religious,gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.
4. The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute* or any crime within the jurisdiction of the Court.
5. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
6. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

*murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, sexual violence, enforced disappearance of persons, apartheid, [or] other inhumane acts [“great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act”].

Introduction: Since article 7 pertains to international criminal law, its provisions, consistent with article 22, must be strictly construed, taking into account that crimes against humanity as defined in article 7 are among the most serious crimes of concern to the international community as a whole, warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world.

This entry was posted in Uncategorized. Bookmark the permalink.