Metro Weekly

Federal court refuses to edit judge’s remarks calling out anti-gay pastor’s “crackpot bigotry”

But Scott Lively and Liberty Counsel claim victory on grounds that judge's remarks have no binding legal effect

Scott Lively – Photo: Tim Pierce, via Wikimedia.

A federal appeals court refused to edit or remove language from a lower court’s decision that denounced an anti-LGBTQ pastor’s actions as “crackpot bigotry.”

However, the pastor is nonetheless hailing the ruling as a victory, reports The Boston Herald.

The 1st U.S. Circuit Court of Appeals upheld a decision by U.S. District Court Judge Michael Ponsor of the District of Massachusetts, in which Ponsor dismissed a lawsuit filed by Ugandan LGBTQ activists against Scott Lively, a conservative activist and pastor.

The activists, from Sexual Minorities of Uganda, claimed Lively was guilty of “crimes against humanity” for his work fomenting anti-LGBTQ animus abroad and pushing Ugandan lawmakers to adopt a law that would have instituted the death penalty for people convicted of engaging in homosexuality.

But Ponsor found that the group didn’t have standing to sue Lively in federal court because the alleged crimes didn’t occur in the United States.

But Ponsor took some editorial license in his decision, blasting Lively’s efforts to promote anti-LGBTQ initiatives or laws abroad and sating his views on gays ranged from “ludicrous to abhorrent.”

“This crackpot bigotry could be brushed aside as pathetic, except for the terrible harm it can cause,” Ponsor said.

Ponsor also said that he believed Lively’s actions did violate international law, even though he was technically forced to dismiss the case. 

Lively, a Republican candidate for governor of Massachusetts this fall, appealed the ruling and asked the circuit court to edit out Ponsor’s editorial comments, fearing that they would provide rationale for other lawsuits against Lively or others who promote anti-LGBTQ initiatives.

But the appeals court declined to make those changes, arguing that Ponsor’s comments had no legal weight.

“This appeal reminds us that federal courts of appeals have no roving writ to review either a district court’s word choices or its run-of-the-mill interlocutory orders,” Judge Bruce Selya wrote for the three-judge panel. “…We lack jurisdiction to entertain Lively’s importunings that we purge certain unflattering comments from the district court’s opinion. Consequently, this portion of Lively’s appeal must be dismissed for want of appellate jurisdiction.”

But Lively and his legal team, from the right-wing legal firm Liberty Counsel, have nonetheless declared victory, primarily because, as Selya notes, despite any embarrassment or humiliation Lively might have felt from what his lawyers have called Ponsor’s “outrageous statements” and choice of words, they are not binding and do not open the door to future legal challenges like the one brought by Sexual Minorities of Uganda. 

“Although Lively’s summary judgment win put an end to SMUG’s attempt to silence him, he filed the appeal to strike the outrageous statements and unnecessary, unsupportable findings made against Lively by U.S. District Judge Michael A. Ponsor in the order delivering the win,” Liberty Counsel wrote in a press release.

“The court of appeals’ opinion neutralizes the gratuitous language, making it clear that Judge Ponsor’s statements have no legal effect. … The court of appeals made it clear that Judge Ponsor’s statements ‘lack any binding or preclusive effect,’ and ‘should not be accorded any binding effect in future litigation.'”

Lively told the Herald that those conclusions by the circuit court made the appeal worthwhile.

“We got exactly what we wanted,” he said, “and we didn’t have to reopen the case.”

“The court of appeals has legally cleared Lively’s name, stating unequivocally that Judge Ponsor’s baseless findings and insults have no legal effect whatsoever,” Horatio Mihet, Liberty Counsel’s Vice President of Legal Affairs and Chief Litigation Counsel, said in a statement. “The decision also thwarts SMUG’s promise to weaponize Judge Ponsor’s attack against Lively, leaving SMUG with what it always deserved from this case, which is nothing.”

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John Riley is the local news reporter for Metro Weekly. He can be reached at

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