Look at what just happened in Massachusetts:

A federal judge ruled Wednesday that a first-of-its-kind persecution case against antigay American evangelist Scott Lively filed by LGBT Ugandans can proceed, according to the Center for Constitutional Rights, which helped Sexual Minorities Uganda file the international lawsuit. Lively had filed a request to dismiss the suit, saying his antigay proselytizing was protected by his First Amendment rights to free speech.

The ruling “is a significant victory for human rights everywhere but most especially for LGBTI Ugandans who are seeking accountability from those orchestrating our persecution,” said Frank Mugisha, executive director of SMUG.

The suit seeks to hold Lively responsible for conspiring with religious and government leaders to persecute LGBT people in Uganda, where parliament is still considering the so-called Kill the Gays bill that proposes capital punishment of homosexuality in certain instances.

During opening arguments in January, the New York-based Center for Constitutional Rights said Lively’s decade-long collaboration with political and religious leaders in Uganda deprived the nation’s LGBT people of basic human rights and should therefore be punishable under the Alien Tort Statute, which gives “survivors of egregious human rights abuses, wherever committed, the right to sue the perpetrators in the United States,” according to the Center for Justice and Accountability.


“Activists like Scott Lively have increasingly started to confuse their religious freedom with a license to persecute LGBT people and criminalize homosexuality around the world,” said Wayne Besen, executive director of pro-LGBT group Truth Wins Out. “We hope that this case is the beginning of an ongoing effort to hold those who commit anti-LGBT crimes accountable for crimes against humanity. LGBT people should be safe and free from discrimination on every square inch of this planet, and no government has the right to punish and persecute gay people for who they are.”

This is pretty shocking. Cards on the table: I think Scott Lively is a bad man, and the Uganda law an outrage. I would not feel sorry for him if he were charged in Uganda, or any other country where he’s advocated persecution of gay people. But think about this: a US federal judge has allowed to proceed a lawsuit in American courts against an American for non-treasonous things he has said in a foreign country. An American citizen is going to go on trial in an American court for crimes against humanity because he is anti-gay, and legally advocated these beliefs in a foreign country where doing so was legal.

Think about the principle at stake here. Look, if a radical American Muslim flew to Cairo today and gave a talk urging Muslim Brotherhood members to repress Egyptian Christians, I would be disgusted and appalled, and would happily seem him condemned. But if he were to be tried in an American court for crimes against humanity, based on his spoken advocacy in Cairo, I would find that somewhat unnerving.

But that doesn’t mean I would be legally correct. I read the judge’s order, and to my non-legal eyes, it is very well argued, and makes a strong case not for Lively’s guilt, but for solid grounds for this to go forward under US law and legal precedent. The judge says none of this proves Lively’s guilt, which was not at issue; he simply had to consider whether or not the defendant’s request for a dismissal was sufficient.

I’m not sure how to think about this. Again, what Lively has done strikes me as revolting, and I don’t feel sorry for him. But something strikes me as wrong about making an American stand trial in America for his words spoken overseas. Yet the judge makes a strong case on the merits, and I can’t say that he’s wrong on the law. The activist Wayne Besen’s comments seem to recognize no difference between religious opposition to full gay rights and “crimes against humanity.” If that is true, is the Russian Duma and anyone who supports their anti-gay laws — which are not nearly as severe as Uganda’s, by the way — potentially guilty of crimes against humanity? My guess, based on the judge’s analysis of legal terminology, is probably not. But who knows? What do you think?