In Pennsylvania, Halloween happens. In solidarity with their brethren in every other state in this country, some Pennsylvanians are prone to wear offensive costumes.


This is not about the wisdom of offensive costumes, the pitting of nascent libertarianism against the implied need for social responsibility in what we communicate to others, surviving even the implied relief of that responsibility by reliving our childhoods through dressing up in things we bought from thrift stores.

This is about the ability of religion to escape the restriction of generally applicable laws, which seems to be strangely relevant these days.

I hesitate to speak to the unfiltered version of this series of events, as the information available comes from this Opposing Views article, this local ABC news report, and known Islamophobe Andrew C. McCarthy. From what I’m able to tell, though, the Pennsylvania state director of American Atheists, Inc., Ernest Perce V., marched in a Halloween parade as ‘Zombie Muhammed’ alongside a ‘Zombie Pope’. Perce’s costume included a sign bearing phrases insulting to Islam. Talag Elbayomy, a Muslim, confronted Perce and, in some manner, grabbed Perce and/or his sign. Elbayomy was charged with criminal harassment for his actions.

State Magistrate Judge Mark Martin received the case, and ultimately dismissed the charges. Although unclear exactly why he did so, Martin did find it within him to draw on his years as an Army reservist serving in Iraq and lecture Perce (yes, Perce) at length for the offensiveness of his sign (transcript available here).

McCarthy (and many of his fellow travelers on the right) have declared this an unconscionable turn into sharia law, the rise of Islamic domination over American courts. As it turns out, it’s not. As it further turns out, the newly discovered and inviolable right of “freedom of conscience” discovered somewhere between the words “free” and “exercise” in the First Amendment gives Elbayomy a better case for exemption from his harassment charge than it does the Catholic Church for exemption from HHS contraception regulations.

To be clear, I think Judge Martin was likely wrong in his decision – Elbayomy admitted to confronting Perce and attempting to take his sign. The offensiveness of Perce’s language isn’t an excuse for Elbayomy’s actions, and this wasn’t a particularly complex case, barring some evidence or uncertainty not readily apparent here.

That having been said, let’s talk about decades-old Supreme Court cases. In 1942, the court determined that a class of words called “fighting words” lacked First Amendment protection. In Chaplinsky v. New Hampshire, the court said:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

The doctrine has been severely narrowed by subsequent decisions, and no private action or public regulation has ever been held to be “fighting words”.  Of course, in the new era of “freedom of conscience”, it’s not entirely clear that matters.

The crux of the argument that freedom of conscience is a constitutional right is that the Free Exercise clause protects private religious belief from any law that conflicts with it. Despite the fact that an absolute rule of this type leads to absurd results (like, say, a believer’s exemption from harassment laws because someone offends his faith) and the fact that such a rule is completely ahistorical (religious exemptions have always been a matter of public policy preference rather than guaranteed right), conservatives are sticking with it.

The Catholic Church believes that it should be exempt from an HHS regulation that it already complies with in dozens of states because it offends their faith. The same principle, applied to Talag Elbayomy, provides no reason why a devout Muslim should not be able to grab an offensive sign if his religion calls on him to defend his faith without criminal penalty, particularly when married to another exemption from the First Amendment. Arguably, Elbayomy has a better case, if for no other reason than that he hasn’t repeatedly violated the ironclad religious principles that serve as the basis of his objection.

Elbayomy should have faced criminal penalties for harassing (more accurately, assaulting) Perce. And the Catholic Church should comply with regulations governing the secular services it provides. This isn’t because of hostility to faith. It’s because we live in a society that never intended to make religion an impenetrable shield to law, and to do so necessarily opens up the door to anarchy governed only by faith.