A Cumberland County magisterial district judge who is also a U.S. Army reservist with three Middle East tours under his belt has drawn national scrutiny for a ruling he made more than two months ago.

On Dec. 6, Judge Mark Martin dismissed a harassment case brought against Talaag Elbayomy, 46, of Mechanicsburg.

In his ruling, Martin said that the defendant’s actions did not rise to the level of harassment as defined under the statute.

It’s not necessarily the ruling that has news outlets like FoxNews in an uproar. It’s the religious beliefs, or lack thereof, of the parties involved.

The case alleged that Elbayomy, a Muslim, harassed Ernest Perce V, an atheist, while Perce was participating in the annual Mechanicsburg Halloween parade Oct. 11.

Background

Ernest, his son, and a man identified only as “Carl” walked in the parade as the “Parading Atheists of Central Pennsylvania.” They dressed as zombie versions of religious figures — namely, the Prophet Muhammad, central to Islam, and Pope Benedict XVI, head of the Roman Catholic Church.

Perce said Elbayomy “attacked” him, trying to wrench from Perce’s body the sign he was wearing identifying himself as Muhammad. Perce also said that Elbayomy and he engaged in a physical altercation that lasted “approximately 48 seconds.”

Perce taped the incident on his cell phone camera. When the parties went before Martin in December, Perce said he asked to videotape the proceedings and was denied, but he was permitted to audio-record the proceedings.

He did so, then posted on YouTube an audio file of about 36 minutes, with a background image of Martin. Periodically, words scroll across the screen, purporting to give the viewer background information or to clarify the proceedings.

Perce admits at the beginning of the video to altering it, writing, “Long pauses and personal data of both parties have been removed.”

There is no way to verify what else, if anything, has been removed or how else the audio file may have been altered.

Trial

During the trial, Perce is on the stand and answering questions by a man identified as Mark Thomas, Elbayomy’s attorney. The man identified as Thomas asks Perce if he posted a video to YouTube labeled “Muslim Attacks Atheist,” and Perce affirms that he did.

The questioner then asks if Perce also responded to comments posted on the video, and Perce once again affirms that he has.

When asked if he was dressed as Muhammad, Perce says, “I was dressed and depicted as the Prophet Muhammad in a gown with, uh, you know, like, I don’t know what they’re called, a head wrap, as a zombie.”

He goes on to say that the Qur’an says Muhammad rose from the dead and walked among people and “anybody who raises from the dead... is a zombie by definition.”

(The word “zombie,” which derives from the Haitian Creole religion, means an animated corpse brought back to life by mystical means, such as witchcraft).

Perce then claims that Elbayomy accosted him, trying to pull the sign and beard off his body.

Offended

When Elbayomy takes the stand, he explains that Perce’s depiction of Muhammad offended him and his family. He was watching the parade with his wife and their 9-year-old and 4-year-old sons.

“First of all, I teach my kids how to respect everybody. Any religion, it doesn’t matter what your religion. It doesn’t matter your color. I teach them to be respectful for everybody,” Elbayomy is heard saying on the tape.

At first, he says, he and his wife couldn’t believe what they’re seeing.

“I had to so something for my son, my family, for my religion, for my prophet,” Elbayomy says. He says he confronts Perce and tells him to stop, that what he’s doing is ridiculous.

At this point, Perce alleges that Elbayomy tried to choke him, something Mechanicsburg police Sgt. Brian Curtis tried to get Elbayomy to admit to in his testimony.

When Curtis himself was on the stand earlier in the trial, he admitted to Martin that he had not taken a statement from Elbayomy that night but had questioned him about the incident.

According to the unverified audio recording, it was Curtis’ testimony that Elbayomy had initially admitted to striking Perce, a charge he denied on the stand under oath in December.

Elbayomy said he believed Perce’s actions were illegal. He also said that he would have done the same thing for a depiction of a zombie Jesus.

In Islam, Jesus is considered not the Son of God but a prophet of lesser importance than Muhammad.

Ruling

In the audio file, after all the evidence is presented, Martin issues his ruling.

“Well, having had the benefit of having spent over two-and-a-half years in a predominantly Muslim country, I think I know a little bit about the faith of Islam,” he is heard saying. “In fact, I have a copy of the Qur’an here and I would challenge you, sir, to show me where it says in the Qur’an that the Muhammad arose and walked among the dead.

“I think you misinterpreted a couple of things,” Martin continues, “so before you start mocking somebody else’s religion, you might want to find out a little bit more about it. It kind of makes you look like a doofus.”

Prohibition

Muhammad’s death is actually not addressed in the Qur’an at all. Islam teaches that “Muhammad received the Qur’an and orally transmitted it directly from Allah via the Angel Gabriel, so his own death is not described,” according to Alexandra Jerome, a teaching fellow and doctoral candidate in religious and Islamic studies at the College of William & Mary in Williamsburg, Va.

One of the claims Elbayomy made is that in his country — which is not identified on the audio file — representing Muhammad at all pictorially is a crime.

The reason is from Muhammad himself, explained Jerome, a 2003 Dickinson College graduate.

“On the Arabia peninsula before Islam, it was polytheistic and revolved around iconography. Muhammad abolished all of that. He was commanded by Allah to get rid of any graven images,” she said.

Because Allah, like Christianity’s God, is deemed to be “all-powerful, omnipotent and omniscient, they don’t participate in representations of Allah. They always cover a prophet’s face with a veil or a ball of flame,” she said.

Muslims believe that what Allah created was perfect and cannot be represented by human drawing. It is a legalistic belief shared by other religious sects, notably the Amish, who don’t put faces on dolls and don’t allow photos of themselves to be taken, for fear of making a graven image.

Competing rights

It’s a concept with which Martin is clearly familiar.

“In many other Muslim-speaking countries — excuse me, many Arabic-speaking countries, predominantly Muslim, something like this is definitely against the law there, in their society,” he says on the tape. “In fact, it could be punished by death, and frequently is, in their society. Here in our society, we have the Constitution, which gives us many rights, specifically First Amendment rights

“It’s unfortunate that some people use the First Amendment to deliberately provoke others,” Martin says. “I don’t think that’s what our forefathers really intended. I think our forefathers intended that we use the First Amendment so we could speak what’s on our mind, not to piss off other people and cultures, which is what you did.

“I don’t think you are aware, sir, there’s a big different between how Americans practice Christianity. I understand you’re an atheist, but see Islam is not just a religion, it’s their culture. It’s their very essence, their very being....

“And what you’ve done is, you’ve completely trashed their essence, their being. They find it very, very, very offensive. I find it offensive.

“But you have that right, but you are way outside your boundaries of your First Amendment rights.

“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,” Martin says.

“All that aside, I’ve got two sides (of a) story that are in conflict with each other. I can’t believe that if there was this kind of conflict going on in the middle of the street and somebody didn’t step forward sooner to try and intervene that the police officer on the bicycle didn’t stop and say, ‘Hey, let’s break this up,’” he added, before dismissing the charges against Elbayomy for lack of evidence.

None of the parties involved could be reached for comment.

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