The atheist activist who allegedly was attacked by a Muslim during a Halloween parade while dressed as “Zombie Muhammad” and scolded by a judge for mocking Islam’s prophet now has filed a formal complaint with a school district against a teacher for wearing a Star of David necklace.
But a top legal analyst says “Zombie Muhammad,” Ernest Perce V, the Pennsylvania state director of American Atheists, likely doesn’t have a case.
Constitutional attorney Eugene Volokh explained on his website a Pennsylvania law bans teachers from wearing “while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.”
The law is unconstitutional, Volokh contends, because it “overtly and deliberately discriminates against religious behavior.”
Two years ago, Perce was marching in a parade dressed as a “Zombie Muhammad” in Mechanicsburg, Pennsylvania, when a Muslim man, Talaag Elbayomy, allegedly stormed out of the crowd and assaulted him, grabbing a sign around his neck and pulling until the strings choked him.
However, Magisterial Judge Mark Martin of Cumberland County, a Muslim, scolded Perce for offending Islam at the Oct. 11, 2011, parade, called him a “doofus” and accused him of “using the First Amendment” to enrage Muslims.
Now, according to WHTM-TV in Harrisburg, Pennsylvania, Perce has filed a formal complaint with school officials about a Star of David emblem worn by a teacher of his child at East Pennsboro Middle School in Enola, Pennsylvania.
Citing the 1940s law that makes it illegal for a public school teacher to display a religious symbol, Perce said his children are in class to be educated, “not learn about religious points of view.”
He told the station he’s changed from a couple of years ago.
“Today I am an orthodox Christian,” he told WHTM.
He alleged if the school district doesn’t act, the board could be fined and the teacher suspended.
Volokh suggested the case might not be that clear.
“I think … that such statutes violate the Free Exercise Clause, because they discriminate against religious behavior,” he wrote.
“Religion-neutral statutes – for instance, that bar all jewelry worn by teachers, or set up a rigid dress code that excludes, say, all headgear, whether yarmulkes, headscarves, or anything else – would be judged under Title VII’s ‘reasonable accommodation’ standard, and might or might not pass muster. But the Pennsylvania statute overtly and deliberately discriminates against religious behavior, and is thus unconstitutional,” he wrote.
‘Very, very, very offensive’
In the 2012 assault case, the judge dismissed the charges filed by police against the Muslim defendant.
The judge brought a Quran to court and told Perce: “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.”
The judge added, “I think our forefathers intended to use the First Amendment so we can speak with our mind, not to p— off other people and cultures – which is what you did.”
Elbayomy – who said he believed it was illegal to mock Muhammad – had been charged with harassment. He denied touching Perce, but police officers said Elbayomy admitted grabbing Perce’s sign and beard.
The judge also told Perce: “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. (Editor’s note: Reverse of sign said, “Only Muhammad can rape America!”) But you have that right, but you are way outside your bounds of First Amendment rights.”
After the case, a complaint was filed against the judge with the Commonwealth of Pennsylvania’s Judicial Conduct Board by John P. McTernan, a pro-life activist and founder of Defend and Proclaim the Faith Ministry.
A letter from Joseph A. Massa Jr., the chief counsel for the state board, to McTernan later said: “The board recently concluded its investigation regarding the complaint you filed against Magisterial District Judge Mark Martin, Cumberland County. The board voted to issue a letter of caution to Judge Martin as a private rebuke of his behavior and, thereafter, to close the case.
“Judge Martin was mailed this letter, and the case is now closed,” the letter said.
At the time, Volokh posted a commentary purportedly the judge.
He accused Perce of “many, many gross misrepresentations.”
“I’m actually Lutheran and have been for at least 41 years,” he said.
The judge also explained: “I based my decision on the fact that the Commonwealth failed to prove to me beyond a reasonable doubt that the charge was just; I didn’t doubt that an incident occurred, but I was basically presented only with the victim’s version, the defendant’s version, and a very intact Styrofoam sign that the victim was wearing and claimed that the defendant had used to choke him. There so many inconsistencies, that there was no way that I was going to find the defendant guilty.”
