There is a surprising story out of Mechanicsburg, Pennsylvania that seems the perfect storm of religious tensions. You begin with Ernie Perce, an atheist who marched as a zombie Mohammad in the Mechanicsburg Halloween parade. Then you add Talaag Elbayomy, a Muslim who stepped off a curb and reportedly attacked Perce for insulting the Prophet. Then you have a judge (Judge Mark Martin) who threw out the criminal charges against Elbayomy and ridiculed the victim, Perce. The Judge identifies himself as a Muslim and says that Perce conduct is not what the First Amendment is supposed to protect. [UPDATE: The judge says he is not a Muslim despite what is heard by most listeners on the tape. That being the case, the criticism of the comments remains.] [UPDATE2: Perce has responded to our blog and denied many of the factual representations made by Judge Martin].
Perce is the American Atheists’ Pennsylvania State Director and marched with other atheists, including one dressed as a creepy Pope. Here is the tape of the incident:
Perce says that Elbayomy grabbed him and tried to take his sign. Elbayomy was at the parade with his wife and children and said that he felt he had to act in the face of the insult. The officer at the scene, Sgt. Brian Curtis, correctly concluded that Perce was engaged in a lawful, first amendment activity. He therefore charged Elbayomy. While it looks like an assault, he was only charged with harassment.
The case, however, then went to District Judge Mark Martin who not only threw out the charge of harassment but ridiculed Perce as a “doofus.” He also proceeds to not only give an account of his own feelings (and say that he was offended personally by Perce’s action) but suggests that Elbayomy was just protecting his “culture.” The judge not only points to the Koran in the courtroom but his time in Muslim countries as relevant to his deliberations. Putting aside the problem of ruling in a case where you admit you have strong personal feelings, the lecture given on the first amendment is perfectly grotesque from a civil liberties perspective.
Here is part of the hearing transcript:
Well, having had the benefit of having spent over two-and-a-half years in predominantly Muslim countries, I think I know a little bit about the faith of Islam. In fact, I have a copy of the Quran here, and I would challenge you, Sir, to show me where it says in the Quran that Muhammad arose and walked among the dead. I think you misinterpreted a couple of things. So before you start mocking somebody else’s religion, you might want to find out a little more about it. It kind of makes you look like a doofus. …
In many other Muslim-speaking countries, err, excuse me, many Arabic-speaking countries, predominantly Muslim, something like this is definitely against the law there, in their society. In fact, it could be punished by death, and frequently is, in their society.
Here in our society, we have a Constitution that gives us many rights, specifically First Amendment rights. It’s unfortunate that some people use the First Amendment to deliberately provoke others. I don’t think that’s what our forefathers intended. I think our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures – which is what you did.
I don’t think you’re aware, Sir, there’s a big difference between how Americans practice Christianity – I understand you’re an atheist – but see Islam is not just a religion. It’s their culture, their culture, their very essence, their very being. They pray five times a day toward Mecca. To be a good Muslim before you die, you have to make a pilgrimage to Mecca, unless you’re otherwise told you cannot because you’re too ill, too elderly, whatever, but you must make the attempt. Their greeting is ‘Salam alaikum, wa-laikum as-Salam,’ uh, ‘May God be with you.’
Whenever it is very common, their language, when they’re speaking to each other, it’s very common for them to say, uh, Allah willing, this will happen. It’s, they’re so immersed in it. And what you’ve done is, you’ve completely trashed their essence, their being. They find it very, very, very offensive. I’m a Muslim. I find it offensive. I find what’s on the other side of this [sign] very offensive. But you have that right, but you are way outside your bounds of First Amendment rights. …
I’ve spent about seven years living in other countries. When we go to other countries, it’s not uncommon for people to refer to us as ‘ugly Americans.’ This is why we hear it referred to as ‘ugly Americans,’ because we’re so concerned about our own rights, we don’t care about other people’s rights. As long as we get our say, but we don’t care about the other people’s say.
The judge’s distorted view of the first amendment was magnified by Elbayomy’s counsel, R. Mark Thomas who called this lecture “a good dressing down by the judge. The so-called victim was the antagonist and we introduced evidence that clearly showed his attitude toward Muslims. The judge didn’t do anything I wouldn’t have done if I was in that position.”
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.
Notably, reports indicate that Elbayomy called police because he thought it was a crime to be disrespectful to Muhammed. The judge appears to reference this by noting that in some countries you can be put to death for such an offense. Those countries are called oppressive countries. This is a free country where it is not a crime to insult someone’s religion — despite a counter-trend in some Western countries.
I also do not see how the judge believes that he has the authority to tell a religious critic that “before you start mocking somebody else’s religion, you might want to find out a little more about it.” Let alone call a person a “doofus” because he opposes religion.
To make matters worse, the judge is reportedly threatening Perce with contempt for posting the audio of the hearing.
The reference to the cultural motivations for assaulting Perce seems to raise a type of cultural defense. I have spent years discussing this issue with state and federal judges on the proper role of culture in criminal and civil cases. This is not a case where I would view that defense as properly raised. There are certainly constitutional (and yes cultural) norms that must be accepted when joining this Republic. One is a commitment to free speech. If culture could trump free speech, the country would become the amalgamation of all extrinsic cultures — protecting no one by protecting everyone’s impulses. Those countries referenced by the court took a different path — a path away from civil liberties and toward religious orthodoxy. It is a poor example to raise except as an example of what we are not. The fact that this man may have formed his views in such an oppressive environment does not excuse his forcing others to adhere to his religious sentiments.
Martin’s comments also heighten concerns over the growing trend toward criminalizing anti-religious speech in the use of such standards as the Brandenburg test, a position supported by the Obama Administration.
There are legitimate uses of the culture defense. However, when it comes to free speech, that is not just our controlling constitutional right but the touchstone of our culture.
I can understand the judge’s claims of conflicting testimony on the crime –though it seems to be that the officer’s testimony and the tape would resolve those doubts. However, I view this as an extremely troubling case that raises serious questions of judicial temperament, if not misconduct.
Source: ABC
OK, so he was acting like a “doofus,” but the judge had no place in saying it. Harassment is harassment. Unbelievably pompous lecture on Islam by a local judge. Ridiculous.
RE: Michael, who wrote – “Now, before you get your rocks off at your own pseudo-intellectualism, let me attempt to correct your misapprehension of my defense of this judge. I agree that this (clown of a) man had every right to offend and disrespect another man’s religion.”
Michael, that you make an ad hominem comment against a man who was assaulted by a person espousing a very dangerous ideology may inform the casual reader as to a very interesting trend in American politics, as this pertains to a rise in theocratic sympathies. I do revere Thomas Cromwell, Baruch Spinoza, Thomas Hobbes, Francis Bacon, Thomas Paine and a host of other great humans who contributed much to the intellectual pursuits of mankind. Were a person to dress as a Zombie form of any of these for a Halloween parade, I would do no more than smile, for such a gesture would be funny.
Therefore, although I am a Catholic, I would consider a similar costume depicting Jesus, Mary, Joseph, Lazarus or any Old or New Testament figure as a similar stimulus for a smile.
However, many particulars in your comment suggest that you are of the mindset that religious figures are somehow immune from satire. Am I correct?
This comment is directed specifically at “tfs”, who above had this to say about my earlier posts:
“You claim to believe in the 1st amendment yet you give weight to the fact that the victim was an atheist and was doing something you don’t like. That would be called hypocrisy. I know you don’t see it. If the man had not been an atheist, and he was walking down the street proclaiming that all French people are stupid, would you feel the same way? Would you feel that a french man running over and kicking the sh*t out of him would be, at least to some degree, justified? I doubt it. But there can be no shades of grey here.”
Let me begin my saying that I entirely agree with your assessment of my bias tfs. If this man had been walking down street proclaiming that all French were stupid, of course I wouldn’t feel the same way. In fact, I’d likely agree with him, since no one likes the French anyway.
Now, before you get your rocks off at your own pseudo-intellectualism, let me attempt to correct your misapprehension of my defense of this judge. I agree that this (clown of a) man had every right to offend and disrespect another man’s religion. I think all the poster’s on here agree that such activity, though disappointing, is protected right under the 1st Amendment. I also pointed out earlier that, if this man had faced prosecution in some way for his actions, I, too, would be up in arms at that blatant violation of his 1st Amendment rights.
You’re defense of him appears to run much deeper though. You seem to be saying that, as an American, we should rejoice in his cause to see this Muslim man prosecuted. That he somehow is a great savior of our 1st Amendment rights;
I think that is complete BS and irrational. I feel absolutely ZERO sympathy for this man. On a personal level, I’m glad the Muslim man was not prosecuted. Idiots like this atheist do nothing to advance a culture of understanding in this country. In fact, they hinder it in the name of exercising their right to free speech. It’s all well and good that he has a “right” to do what he did, but as a responsible CITIZEN–with rights and obligations to other members of this country—he shouldn’t have.
And I’m not saying he should have refrained from such activity because of the “sensitive” Muslims. This has less to do with how the Muslim man reacted, and more to do with the state of American culture when people such as this man rejoice in the fact that they CAN legally do something so offensive.
I can embrace the 1st Amendment but still feel disappointed in the results it produces. The Supreme Court recognized as much last year in the Wellboro Baptist Church case. You, and other posters on this board who so eagerly embrace this man, scare me. The fact that there has been so little recongition of the wrongness of this man’s actions, and the rallying cry to burn the judge at the stake, doesn’t bode well for the future of this country,
@Michael – You seem to have misunderstood some very fundamental points. The man was taking part in a Halloween parade. Lots of people around the town were in this parade, everyone dressed up as something. This man merely dressed up as a zombie Muhammad. Another person dressed up as a zombie Pope. The Muslim individual who attacked him did so because he wanted to make an example for his son to see that it is important to defend your faith and punish heretics. This is a very dangerous perspective and can lead to murder. If this Muslim gentleman had had a gun he might have shot him. This wasn’t a random protest. The man should be prosecuted for his assault, and the judge should be disbarred for justifying religious violence. Nobody has the right to put their hands on another person with intent of violence. Now all that being said, why do you consider the atheist gentleman to be such a nuisance? More and more people see organized religion for the danger that it is. That doesn’t make him stupid, it actually makes him pretty smart.
Riddle me this, if the atheist Zombie Muhammed had been BEATEN TO DEATH, rather than just assaulted, would the ‘cultural defense’ have held up against a murder charge, too?
Methinks not. The judge should have recused himself on account of a pretty clear conflict of interest…
I wonder, if the judge really is a Muslim but now claims not to be to avoid the political firestorm that could cost him his job, will his God throw him into some kind of fiery purgatory for eternity for denying his religion? Allah seems a rather wrathful and jealous God. I’m guessing he wouldn’t be pleased by a “fair weather follower”…
Guess time will tell, eh?
Muslims a allowed to deny their religious affiliation if it serves allah ( small a )
It does not violate the 1st amendment not to prosecute some. Cases similar to this, except for the subject matter, are dismissed all the time. If X calls Y a “bitch” and Y attacks X, but then the case get’s chucked, no one cries that X’s right to engage in free speech has somehow been violated because Y wasn’t found guilty.
Salam alaikum means “May peace be upon you”. Not that it has any bearing whatsoever but does further the idea that this judge is a Dumb Person.
Removing the Judge from the bench is insufficient.
He should be prosecuted for failing to enforce the constitution evenly for everyone without any religious test. What this moron did was ostensibly enforce Sharia Law!
Pennsylvania… the state that gave us Santorum and Judge Mark Martin…two names that should live in infamy.
This idiot judge needs to be removed immediately.
this is not an isolated one of a kind theocracy case, cops & judges in Charleston, SC refuse to arrest or prosecute any tampon terrorists in front of the abortion clinic here…. no assault, no trespass, no vandalism no threat, intimidation or harassment PERPETRATOR has EVER BEEN ARRESTED IN 9 YEARS HERE while the doctor was arrested, posted 50 thousand dollars bond protecting himself from 3 stalkers in the bushes just 20 feet from his car, that case still pending, no trial since October of 2010 …. what matters is that religious fanatics do escalate their criminal actions, let them super glue abortion clinic locks 2 weeks in a row on a Saturday & HOW MANY OF THEM WILL drive from Kansas City to Topeka Kansas to murder another Doctor Tiller in his church the next morning ? 9 dead doctors families want to know and Atheists want to know why religious crime is sanctified & not convicted with stiff jail time 843-926-1750 … this muslim perpetrator should have been given a couple of days in jail & several hundred dollars fine to make all his brethren think twice about hurting an Atheist for telling the truth about the throat slitting religion inventing Mohammed @AtheistVet & @Greens926_1750 Larry_Carter_Center@yahoo.com eyewitness to criminal theocracy in America, Iowas’ Only Political Prisoner of Supreme Being Government 1990
I gather this incompetent judge served in daddy Bush war? He’s 50ish years old ? Let’s paint a reasonable picture here: judge hears traffic court cases, domestic abuse, drunk & disorderly, typical magistrate stuff maybe even a few divorce trials & civil lawsuits of minor amounts of money….? Then American Atheist walks in, refuses to “swear to god” Muslim defendant is sworn to Allah? Cop is the only state witness, no prosecuting attourney, our Atheist had a lawyer? The perpetrator has an idiot lawyer. Victory for theocracy & violent believers. I’d like to see a court reporter’s transcript. Looks like there should be an ethics violation brought against this judge before the Pennsylvania Supreme Court or the local bar association, incompetence & bias is grounds for disbarrment.
Having read each and every comment, I find that I’m of the opinion that the judge ought to lose his job. He has set a very dangerous precedent in having lectured a victim as to the sensitivities of the a religious mind. Does he not understand that most Christians believe atheists to be no more trustworthy than violent criminals? See: http://www.christianpost.com/news/religious-people-trust-atheists-and-rapists-the-least-according-to-study-63652/
Were I to be the victim, I would put into motion any and all legal action possible against this judge for contempt of court and/or harassment. Furthermore, I will continue to call the Mechanicsburg office and express my concerns.
I hope they make an example of this moronic judge. Fire his biased ass and humiliate him whenever possible.
http://www.cnn.com/video/#/video/bestoftv/2012/02/27/exp-point-jonathan-turley.cnn
“is this the for real trial recording???”
Good point…..at this time there no confirmation the youtube video has been unaltered and that the “judge’s response” is genuine.
“Personally, I agree with the judge. Dude was an idiot for dressing like that.”
Too bad being an idiot isn’t against the law and critical speech is protected by the 1st Amendment.
“Shut your whore mouth Richard”
Proof that stupidity isn’t against the law and critical speech is protected by the 1st Amendment.
Michaelb1, February 27, 2012 at 2:45 pm
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is this the for real trial recording???
sheesh
This “decision” was neither considered or lawful, to say nothing of the decent thing to do. Capitulating to superstitious hissy fits (and of course real violence we are all too familiar with, embassy anyone) is not the way forward. The freedom to voice an opinion is paramount in rational society, and to stifle it, least of all of religion, is a step back into the dark ages.
This Judge needs to be made an example of and Muslims the world over need to grow up.
http://www.youtube.com/watch?v=tQeYDoeSwcw&feature=colike
Muslims speak out