Last week on these pages, I wrote about Pastor Coronado and Mark Mackey who were arrested for reading the Bible near the DMV line in Hemet, California. After a trial, they were found not guilty of breaking California law. So that was good news. However, a new case in Springfield, Massachusetts, has raised some stunning and troubling constitutional questions. Massachusetts-based federal Judge Michael Ponsor has allowed a homosexual-rights group in Uganda (yes, in Uganda) to sue American pastor Scott Lively of Abiding Truth Ministries for “injuries” resulting from Pastor Lively’s biblical preaching in Uganda against homosexual behavior. Pastor Lively shared his biblical views on homosexuality during a 2009 visit to Uganda. The Ugandans have claimed that Pastor Lively must be punished for criticizing homosexuality, calling his sermons a “crime against humanity” in violation of “international law.”
The Ugandan homosexuals based their case against Pastor Lively on an obscure law dating back to the founding of our Republic, the Alien Torts Claim Act of 1789 (“ATCA”). This law provides jurisdiction in federal courts for civil lawsuits for torts “committed in violation of the laws of nations or a treaty of the United States.” However, earlier this year, the Supreme Court limited the ATCA by ruling that it does not apply to conduct outside of the United States. (Judge Ponsor, obviously a man of exceptional and rare intelligence, graduated from Harvard University and Yale Law School, was a Rhodes scholar, and was appointed to the judiciary by Bill Clinton in 1994. Nevertheless, I guess that Judge Ponsor didn’t get the memo from the Supreme Court.) As you can readily imagine, the Supreme Court doesn’t want our federal courts clogged with a large number of “human rights” cases from around the world. (Imagine if Egyptian Copts decided to sue the Council on American-Islamic Relations in Dallas or Salt Lake City federal court for the deaths of family members resulting from attacks by Moslem Brotherhood terrorists?) If the offending conduct occurred in Uganda, then the homosexuals, according to our Supreme Court, should sue in Uganda. However, I suspect that their case would be dismissed outright in Uganda. The Ugandan homosexuals are represented by the George Soros-funded Center for Constitutional Rights in New York, which even the New York Times described as left-leaning. (Wow, that does mean something then!)
Pastor Lively’s attorney, Horatio Mihet of Liberty Counsel, said the preaching of Pastor Lively is protected by the Constitution. Mr. Mihet stated:
We are disappointed with the decision because we believe [the Ugandan homosexuals’] claims are firmly foreclosed, not only by the First Amendment right to free speech, but also by the Supreme Court’s recent decision in Kiobel, which eliminated [ATCA] claims for events that allegedly occurred in foreign nations.
In any event, Judge Ponsor’s ruling said that the allegations of the Ugandan homosexuals were substantive and need to be adjudicated. Interestingly, Judge Ponsor cited “many authorities” who “implicitly support the principle that widespread, systematic persecution of individuals based on their sexual orientation and gender identity constitutes a crime against humanity.” [Emphasis added. Remember that some of the worst ideas in modern human history have started in law schools.] Further, Judge Ponsor said that Pastor Lively’s First Amendment claims were “premature.” Interestingly, in his dissent from the Supreme Court’s ruling against the Defense of Marriage Act (“DOMA”), Justice Scalia anticipated this and warned:
But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. . . . simply for supporting [DOMA] that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence — indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostis humani generis, enemies of the human race.
For most of us, the rights granted to Americans under the U.S. Constitution are presumed to be higher than a consensus of what constitutes “international law,” even when some argue that criticism of homosexuality is criminal. Judge Ponsor’s ruling essentially says that by preaching biblical opposition to homosexual conduct, Pastor Lively was conspiring to deprive the Ugandan homosexuals of their fundamental human rights. Thus, under the judge’s theory of liability, if you oppose homosexual marriage, or have worked or contributed in opposition to such a “marriage,” or disfavor any special rights for homosexuals in the workplace, or in getting a wedding cake, then yes, you too can be convicted of a crime against humanity.
In the first centuries of the Christian era, Christians were referred to as hostis humani generis. If Judge Ponsor’s legal theory is allowed to stand, American Christians might be back to where we were in the first century. So, please continue to watch and pray, and be fervent in preaching the Gospel of the Lord Jesus Christ while it is still day. I will keep you posted on developments in this case. But with judges as obtuse as the Honorable Judge Ponsor, is it any wonder why Mark Levin’s latest book, The Liberty Amendments: Restoring the American Republic, surged to number 1 on Amazon within several days after its release?