Atheist Zombie Mohammed becomes Christian, complains about schoolteacher’s Star of David
By Eugene Volokh
December 1 at 11:25 AM
Our readers might remember the Zombie Mohammed controversy. Atheist activist (Ernest Perce), who was marching as “Zombie Mohammed” in a Halloween parade (alongside a “Zombie Pope”), was attacked by an angry Muslim passerby, Talaag Elbayomy. When Elbayomy was prosecuted, Judge Mark Martin dismissed the charges, and berated Perce for his blasphemous behavior. Martin was eventually formally rebuked by Pennsylvania judicial authorities for this action.
But now Perce is back! He has apparently become an “Orthodox Christian,” and has filed a complaint against a Pennsylvania public school teacher for wearing a “Star of David” necklace. And the complaint, unfortunately, is legally quite plausible (at least assuming the necklace was a sign of religious adherence, and not just ethnic group membership), because the Pennsylvania Garb and Insignia Statute — 24 Pa. Stat. Ann. § 11-1112 (enacted 1895) — provides,
That no teacher in any public school shall wear in said school or 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.
What’s more, U.S. v. Board of Ed. (3d Cir. 1990) rejected a constitutional challenge to the statute; Cooper v. Eugene School District No. 4J (Ore. 1986), appeal dismissed, 480 U.S. 942 (1987), likewise upheld a similar Oregon statute, though one limited to religious dress. (The Oregon Legislature repealed its statute in 2010 — over the objection of the ACLU of Oregon — but the Pennsylvania statute remains on the books.)
I think, though, that such statutes violate the Free Exercise Clause, because they discriminate against religious behavior; and, as I’ll note below, some recent cases so conclude. 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. (I think the same of the former Oregon statute.)
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/01/atheist-zombie-mohammed-becomes-christian-complains-about-schoolteachers-star-of-david/
I wonder what the Atheist Zombie Pope is up to these days.
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