Several point to an absurd incident out of Pennsylvania, where Judge Mark Martin recently acquitted a criminal defendant of assault because his victim, Ernie Perce, was dressed as a “zombie Mohammed,” thereby (apparently) provoking the assault. An excerpt from the trial transcript, as reported by another blog:
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. …
The apparent argument, that some religions are entitled to more deference than others, is simply wrong by any interpretation of the First Amendment. What the Speech Clause of the First Amendment gives, the Free Exercise and Establishment Clauses cannot take away. Judge Martin is categorically wrong to acquit a Muslim defendant of assault, merely because his particular interpretation of Islam “required” him to undertake the assault. Religion has never been a shield against laws of general prohibition in this country. And regardless of however complex the actual prosecution may’ve been — Volokh, characteristically, adds some nuance to it — it is definitionally improper for a judge to admonish a crime victim not to avail himself of his First Amendment rights.
Unsurprisingly, some’ve taken this incident as proof of the “creeping threat” of Shar’ia law. This is wrong. There’s no evidence that the judge applied any actual standard of law, religious or otherwise, in the case — and that’s the problem. He went so far off-book as to either decide the case, or improperly harangue a crime victim, based on his own private sense of morality, and his (flawed) belief that pluralism means selling out to our thinnest-skinned elements. That’s not Shar’ia — that’s garden variety bad judging. Moreover, there is no law, and none can be drafted, against bad judging. We simply have to endure it, and correct it through the system by removing the judges, or appealing the cases (sadly, no appeal is possible here, on a criminal acquittal). To use this incident as “evidence” of a need for a ban on Shar’ia law in American courts is to note a problem that the law could not solve, and to which the basic, irrational fear underlying Shar’ia bans does not speak.
What’s at play here, in the right’s overreaction, is a common problem for modern democracy, especially evident in culture war issues: when a single act bears on the national consciousness, we tend to imagine it’s as common as it is important. In the public’s mind, there’s no such thing as an isolated tragedy. Like the Springfield “bear attack,” society will not allow a wrong to go unanswered, no matter how unlikely its recurrence, or how meaningless (or unrelated) the belated response (YouTube). The absurd amount of time we dedicate to discussing the “threat” of Shar’ia is no different — except for its racially charged overtones — from the truly absurd amount of time we dedicate to debating whether to criminalize flag-burning, despite the complete lack of any evidence suggesting that Shar’ia is a true, immediate threat; or that there is (as President Bartlett said) an “epidemic of flag-burning.” We magnify things that matter to us, and our view of America, in proportion with our values, not in proportion with the facts.
Ideally, we should take off the tinted glasses that make each of us view the world with some of its traits shrunk, others blown to monstrous proportion, and others relegated to peripheral vision. This may be optimistic. And for the Republican Party — with its new standard-bearer, Rick Santorum — deliriously so.