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SMUG OrderDenyingDefMTD 08 13

SMUG OrderDenyingDefMTD 08 13

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Published by Ken Williams
Sexual Minorities Uganda v. Lively
Sexual Minorities Uganda v. Lively

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Categories:Types, Business/Law
Published by: Ken Williams on Aug 15, 2013
Copyright:Attribution Non-commercial


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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS SEXUAL MINORITIES UGANDA, )Plaintiff))v.) C.A. No. 12-cv-30051-MAP)SCOTT LIVELY,)Defendant ) MEMORANDUM AND ORDER REGARDINGDEFENDANT’S MOTIONS TO DISMISS(Dkt. Nos. 21 & 30) August 14, 2013PONSOR, U.S.D.J.I. INTRODUCTIONPlaintiff Sexual Minorities Uganda is an umbrellaorganization located in Kampala, Uganda, comprising memberorganizations that advocate for the fair and equal treatmentof lesbian, gay, bisexual, transgender, and intersex (LGBTI) people in that east African country. Defendant Scott Livelyis an American citizen residing in Springfield, Massachusetts who, according to the complaint, holds himselfout to be an expert on what he terms the “gay movement.”(Dkt. No. 27, Am. Compl. ¶ 1.) Lively is also alleged to be
Case 3:12-cv-30051-MAP Document 59 Filed 08/14/13 Page 1 of 79
Defendant filed his first motion to dismiss (Dkt. No.21) based on Plaintiff’s original complaint (Dkt. No. 1).Subsequently, Plaintiff filed a First Amended Complaint.(Dkt. No. 27.) Defendant has now moved to dismiss the Amended Complaint. (Dkt. No. 30.) Because the Amended Complaint isnow the operative pleading, the court will focus on thearguments raised in Defendant’s second motion to dismiss.
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 substantialdegree has succeeding in fomenting, an atmosphere of harshand frightening repression against LGBTI people in Uganda.The complaint asserts five counts, three invoking thejurisdiction of the federal Alien Tort Statute, 28 U.S.C. §1350 (“ATS”), and two under state law. Plaintiff seekscompensatory, punitive, and exemplary damages; declaratoryrelief holding that Defendant’s conduct has been inviolation of the law of nations; and injunctive reliefenjoining Defendant from undertaking further actions, and from plotting and conspiring with others, to persecutePlaintiff and the LGBTI community in Uganda.Defendant has filed two motions to dismiss, offering inessence five arguments.
First, the court lacks
Case 3:12-cv-30051-MAP Document 59 Filed 08/14/13 Page 2 of 79
jurisdiction because international norms do not bar persecution based on sexual orientation or gender identity with sufficient clarity and historical lineage to make itone of the narrow set of claims for which the ATS furnishesjurisdiction. 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. RoyalDutch Petroleum, 133 S. Ct. 1659 (2013). Third, Plaintifflacks standing to bring this case either on behalf of itselfas an organization or on behalf of members of the LGBTIcommunity in Uganda. Fourth, the right of free speechdescribed in the First Amendment to the United StatesConstitution prohibits any attempt by Plaintiff to restrictexpression, however distasteful, through court action.Finally, the two claims asserted under Massachusetts statelaw lack any adequate legal foundation.For the reasons set forth at length below, none ofthese arguments is persuasive. As to the first argument, many authorities implicitly support the principle that widespread, systematic persecution of individuals based ontheir sexual orientation and gender identity constitutes a
Case 3:12-cv-30051-MAP Document 59 Filed 08/14/13 Page 3 of 79

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