A Pennsylvania judge is drawing flak from the right and the left after throwing out a case last week against a Muslim man accused of harassing an atheist who dressed as a "zombie Muhammed" in a Halloween parade.
In addition, Judge Mark Martin lectured the alleged victim, Ernie Perce, for his insensitivity toward Muslims. Initial reports had Martin identifying himself as a Muslim during his remarks from the bench, but in a subsequent statement, he said he is a Lutheran.
Perce, a member of a group called Atheists of Central Pennsylvania, dressed as "Zombie Muhammed" in the Mechanicsburg parade. He was accompanied by someone dressed as the "Zombie Pope," but his friend was not accosted. The defendant, Talaag Elbayomy, argued that Perce crossed a line in offending his prophet, and as a Muslim, he was obligated to respond. If anyone committed a crime, Elbayomy said, it was Perce.
Perce posted a video of the incident on YouTube. He claims he was grabbed and choked as Elbayomy tried to grab his sign identifying his costume as "Muhammed of Islam."
The judge sided with Elbayomy, an immigrant to the United States, saying it boiled down to Perce's word against Elbayomy's. But he also said Perce strayed "way outside" First Amendment protections. "I think you misinterpreted things. Before you start mocking someone else's religion you may want to find out a little bit more about it it makes you look like a doofus and Mr. (Defendant) is correct. In many Arabic speaking countries something like this is definitely against the law there. In their society in fact it can be punishable by death and it frequently is in their society."
The decision appears so flawed that it generated similar criticism from legal analysts Andrew McCarthy and Jonathan Turley, two people who rarely see eye to eye.
McCarthy, a former federal prosecutor who led the prosecution of blind Sheikh Omar Abdel Rahman, posted a transcript of Martin's remarks, writing that "one's 'attitude toward Muslims' is irrelevant to one's right in America to walk the streets and express opinions people may find offensive without being physically attacked and intimidated."
Martin's speech shows a bias that should have prompted his recusal from the case, rather than his "entertaining a sharia defense to a violation of Pennsylvania law," McCarthy wrote. "The judge had no business ridiculing an American citizen as a 'doofus' and hectoring him with Martin's views about Islam, its requirements, its purportedly extraordinary significance to Muslims (compared to other believers who, according to Martin, are less devoted to their faiths), or about the Muslim perception of 'ugly Americans.'"
Turley, who represents Palestinian Islamic Jihad member Sami Al-Arian, agrees: "I fail to see the relevance of the victim's attitude toward Muslims or religion generally. He had a protected right to walk in the parade and not be assaulted for his views. While the judge laments that '[i]t's unfortunate that some people use the First Amendment to deliberately provoke others,' that is precisely what the Framers had in mind if Thomas Paine is any measure."