Inferring from Aberration: How the Culture War Magnifies

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.


  1. Reblogged this on sarahjanelives and commented:
    Disturbing, but not surprising. Oh, how I wish it was.

  2. Have you read Montague’s Punishment as Societal-Defense? It seems like something relevant to your interests; though I admit I haven’t read it since I was an undergraduate, if I recall correctly, Montague makes much the same argument you do here.

  3. I understand the judge in question may have been a non-lawyer magistrate rather than a professional judge? We have the same system in Britain, and it’s by no means unheard of for such magistrates to come to some extremely unusual conclusions sometimes.

    In any case, I expect this case will be appealed as a matter of routine? Although it’s probably too much to expect the same pundits to write glowing reviews of how well the system actually works when the appeals court makes a more reasonable argument.

    1. Ah, I hadn’t seen the non-lawyer magistrate bit. Where is that?

      If it’s not, there’s no appeal from an acquittal. If you’re innocent of a crime, the state doesn’t get to appeal… so this may stand?

      1. I’m not certain about it, but Volokh linked to this news piece which called him a “district judge”, and I seem to remember from my courses in English law that Pennsylvania district judges are similar to English magistrates in that they don’t necessarily need a law degree.

        I know there’s the Double Jeopardy Clause, of course, but is it really not possible to get an aquittal appealed or retried, even if the judge may have made an error in law? I can understand why a jury trial has to be final, but is the same true for a verdict from the bench?

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