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An Atheist, a Muslim and a Judge: What Really Happened

By Cathy Young - February 29, 2012

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McCarthy also writes that "a police officer would have testified that Elbayomy admitted attacking Perce," implying that this testimony was disallowed by the judge. This seems to be a misinterpretation of reports alleging that Martin refused to consider the officer's testimony -- originating with this garbled statement in the American Atheists posting: "A Police Officer who was at the scene also testified on Mr. Perce’s behalf, to which the Judge also dismissed by saying the officer didn’t give an accurate account or doesn’t give it any weight" (sic).

But on the audio, Martin says nothing of the sort, only that the testimony did not prove harassment beyond a reasonable doubt. The officer, Sgt. Brian Curtis, actually played a key role in the trial, in the unusual dual role of eyewitness and prosecutor cross-examining the defendant. Curtis, who had interviewed both men on the scene but taken no statement, testified that Elbayomy had admitted to "physical contact" with Perce during the argument -- though not to any specific acts such as grabbing or choking. In his own testimony, Elbayomy (whose English is limited) insisted that there had been only a verbal confrontation, and that if he had previously admitted to "physical contact" he might have meant Perce pushing him.

With such conflicting testimony, Martin's decision to dismiss the case is entirely reasonable. The way in which he used his position as a bully pulpit is another story.

It is not unusual for judges to admonish the parties in a case, sometimes harshly, about their conduct. In this instance, though, the lecture was startlingly one-sided. Martin lambasted Perce for his disrespect for other people's culture and faith while not one critical word was spoken to Elbayomy.

There is nothing wrong with telling someone that just because he has a constitutional right to say something doesn't mean he should say it (which Martin told me was his point). Yet there is something inherently disturbing about a public official chastising a citizen for engaging in constitutionally protected expression, however obnoxious. It is especially troubling when it's a matter of criticizing or even lampooning religion, an area in which free speech has so often been trampled.

Meanwhile, Martin had before him a defendant who, by his own and his lawyer's admission, was grossly ignorant of the protections for free speech in America. Surely, a lecture on civics would not have been amiss.

When I posed this question to the judge, he replied that his remarks about First Amendment rights were addressed to both parties: "It was a dual message . . . that the victim was within his constitutional rights to do what he did." But, given that Perce was the one being chided, that message was likely lost on the defendant -- particularly since it came with the disclaimer that these rights should not be used to "piss off other people and other cultures" and with the baffling statement that Perce was "outside [his] bounds on First Amendment rights."

The case has another worrisome aspect. While no religion has a monopoly on fanaticism, it is no secret that, for many complex reasons, religious intolerance is at present far more entrenched, more common and more extreme in Islam than in other major religions. Some argue that violent suppression of dissent is in the nature of Islam, and insinuate that every Muslim in the West is a potential agent of Sharia tyranny.

Martin did not, of course, invoke Sharia law as a basis for his ruling; nor did he suggest that Elbayomy would have been justified in assaulting Perce because his religion commanded it. But he did seem to suggest that insults to the Muslim faith are especially bad because of how impermissible blasphemy is in many Muslim countries and because of the role religion plays in Muslims' lives. Indeed, he specifically drew a distinction between "how Americans practice Christianity" and how Muslims practice Islam: "Islam is not just a religion, it’s their culture . . . it’s their very essence, their very being."

Of course, there are many different ways in which Americans practice Christianity and Muslims practice Islam. Some American Christians respond to perceived slights to their faith in ugly ways (such as threats of violence against productions of Terrence McNally's play "Corpus Christi," featuring a gay Jesus). But American religious practice, overall, is strongly tied to a hard-won tradition of freedom of religion -- and irreligion. Martin's comments seem to suggest that Muslims are far less capable than Christians of dealing sensibly with insults or challenges to their faith. That does a serious disservice both to American democracy and to American Muslims.

Already, this case has given ammunition to peddlers of "Muslim menace" panic (some of whom are now spinning the paranoid fantasy that Martin really is a Muslim but is hiding it to mislead the infidels). The main culprits are those who would sensationalize and twist facts to advance their agenda, be it atheism or Muslim-bashing. But a misguided notion of cultural sensitivity that amounts to a special concern to avoid giving religious offense to Muslims can only lead us further down that path. 

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Cathy Young writes a weekly column for RealClearPolitics and is also a contributing editor at Reason magazine. She blogs at http://cathyyoung.wordpress.com/ and you can follow her on Twitter at @CathyYoung63. She can be reached by email at CathyYoung63@gmail.com.

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