Archives For First Amendment Center

Ordinances against fortune telling have a long history, from bans on sorcery and witchcraft in the Middle Ages and Early Modern Europe, embodied today in places like Saudi Arabia, to anti-fraud bans (often based in various ethnic prejudices) in the 19th century, to current laws that claim to be protecting citizens from fraud, but are often pushed by conservative Christian lawmakers. For generations those who practiced fortune-telling as a profession existed on the margins of society, usually depicted as mere swindlers preying on the gullible, until a new ethos started to emerge that classified divination as an art. Part of a spiritual and religious tradition that practitioners felt should be respected, and not subject to laws designed to outlaw those engaging in parlor tricks.

In the United States, many anti-fortune-telling laws have been challenged on the grounds of religious freedom, notably Z. Budapest’s very public 1975 battle against a California ordinance. More recently, Wiccans in places like Caspar, Wyoming, and Livingston Parish, Louisiana, succeeded in getting ordinances struck down on this basis. However, a much broader decision was handed down by the  Maryland Court of Appeals in 2010, which ruled that fortune telling and related services are protected speech.

“Fortunetelling may be pure entertainment, it may give individuals some insight into the future or it may be hokum,” the Maryland Court of Appeals wrote in a 24-page opinion. “People who purchase fortunetelling services may or may not believe in its value. Fortunetellers may sometimes deceive their customers. We need not, however, pass judgment on the validity or the value of the speech that fortunetelling entails.”

This was something of a sea change in legal thinking on the issue, and soon challenges to fortune telling ordinances on the basis of free speech started to pop up in places like East Ridge, Tennessee. Advocacy group the First Amendment Center, lays out the constitutional rationale.

“…it’s important to note that most speech — whether it expresses my own impeccable logic or someone else’s silly belief — is protected from government control. Not just permitted. Or allowed. Or tolerated. But protected with the full force and vigor of an amendment to the United States Constitution.”

Now, we have another decision, announced yesterday, that bolsters the divination-as-free-speech line of thinking.

“A federal judge this week ruled that an Alexandria law forbidding fortunetellers from working in the city is a violation of First Amendment free speech rights. U.S. District Judge Dee D. Drell concurred with a recommendation in June by U.S. Magistrate Judge James D. Kirk that said Alexandria’s 2011 ban of Rachel Adams’ shop on Jackson Street Extension was unconstitutional.”

The ThinkProgress blog noted that Alexandria, Louisiana’s law banned “palmistry, card reading, fortune telling and other otherworldly communications,” with the city arguing that  fortune-telling is “a fraud and inherently deceptive.” However, U.S. District Judge Dee D. Drell rejected that, noting that Louisiana has been able to survive and thrive while embracing psychics and fortune-tellers, especially in New Orleans.

As the legal framework for total bans start to crumble, many towns and cities have responded by passing strict regulations on the practice. In 2010 both Time Magazine and the BBC looked at a growing trend of stricter regulations against psychics being enforced by local governments. The creation of these subcultural “red light districts” are often harder to challenge than a total ban, though they often have the same effect. For example, in Chesterfield County, Virginia, zoning regulations for psychics are stricter than they are for strip clubs or pawn shops.

“In Chesterfield, businesses considered to be fortune-telling establishments must pay a $300 tax to get a business license, while nightclubs and adult businesses pay only a $100 tax for a license. Fortune-telling businesses must submit five references from the county to the police chief for approval. They are limited to one zoning designation – the same one reserved for adult businesses, scrap yards and pawn shops. And they must get a conditional-use permit for that zoning.”

Author and renowned tarot expert Mary K. Greer believes her business (reading cards) should be treated like any other business, and not singled out for punitive regulations. Quote: “It has been found that laws prohibiting fraud cover most cases of abuse perfectly adequately and far better than regulations that discriminate unfairly against this particular profession, especially when they assume criminal behavior where none has been shown by the individual. It has been proved over and over again that discriminatory regulations are created by special interest groups and that they are unfair and almost always unconstitutional.”

With yet another fortune-telling ban struck down on the basis of constitutionally protected free speech, regulations that try to zone such businesses out of existence are on increasingly shaky legal ground. The harsher the regulation, the more it seems like the local government is privileging one form of speech over another. It seems clear that whether you pay for it or not, whether you believe in it or not, “otherworldly communications” are protected speech. This is not just a good thing for free speech, but a good thing for the Pagans and esoteric practitioners who supplement their income by performing divination.

A few news items I wanted to share with you this Saturday morning. We start off with a glowing profile of the Starwood Festival from Mark Mansfield of Stereo Subversion.

“The best festival I’ve ever participated in, I heard about through word of mouth fifteen years ago. Festival has many different meanings depending on the person. The Hippie might be thinking about Rothbury this year, with it’s heavy Deadhead lineup. The Artist might think of Burning Man where contributory art is everywhere and fires abound. Somewhere in that intersection is Starwood.  Billed as the largest Pagan festival in North America, it is that and so much more … Starwood is a festival unlike any other. It is quite literally what you make it. Some people live for the drumming, while others are intent on attending as many workshops as they can. For some it is a hedonistic party while for others it is a deeply spiritual and transformative experience (and in fact is often both at the same time.) Though not exclusively a music festival, between the concerts, the radio station, and the night’s drumming, the music never stops.”

Dare I wonder if Starwood is becoming, well, hip? Will people start talking about Starwood they way they talk about Burning Man? Maybe, but the musical lineup is still heavily weighted towards the folky-pagan and old hippie, with touches of world music, so I think they have awhile before they’re completely inundated with outsiders.

The wonderful Goddess spirituality blog Medusa Coils points to a recent essay by Starhawk at Alive Mind & Spirit that explores the ever-shrinking mainstream market for “women’s spirituality” book titles, and what that has done to their movement.

“…although you may or may not have noticed, major publishers are no longer terribly interested in books on women’s spirituality.  Why?  Back in the ‘eighties, HarperSanFrancisco published not just me but a whole lot of great books—Carol Christ, Marija Gimbutas, Z. Budapest, Luisah Teish, Vicki Noble if I’m remembering it all right.  They were the books we read, discussed, got excited about and inspired by. Then sometime in the nineties they dropped just about everyone except me—not because the books weren’t selling, but because they weren’t selling enough.  They lost interest in publishing for a strong, steady niche, and only really wanted to publish blockbusters for the mass market … it had a debilitating effect on the movement.  Without the books to inspire women, without new books to continue the discussions and debate, we lost ground, especially with younger women.”

Starhawk also seems to partially blame the Internet and blogging on this shift, though she hasn’t been shy in utilizing the web to fuel her own activist concerns and capitalist endeavours (one wonders how many new readers she gets from her lofty perch at the Newsweek/Washington Post-backed On Faith blog). It is true that book publishers are increasingly focused on “blockbusters”, but it’s also true that there has been a slow shift in the “New Age” book market away from Pagan/occult material and towards the Oprah-style self-empowerment/improvement genre(s). The industry is in flux, and the Pagan and Goddess-focused authors and small publishers will have to think of new ways to reach their audiences (just as the book Starhawk mentions, “Women of Wisdom”, seems to be doing).

In a final note, the First Amendment Center reminds Christians who complain about minority-faith accommodation that they are the one’s who wrote the rules that exclusively benefited them, and who now must deal with the changes that come from a truly religiously pluralistic (and free) society.

“When people complain about the growing list of requests for accommodation in public schools from students and parents from minority faiths, I like to remind them that the majority faith wrote the rules. Founded as Protestant-dominated institutions in the 19th century, public schools never open on Sunday, close for Christmas, and in other ways institutionalize accommodations for the majority faith … Students in the majority faith rarely need religious accommodation in public schools because the majority wrote the rules in the first place – and in many places still writes the rules. For students like Adriel whose faith is unfamiliar to many school officials, it’s often difficult to get a fair hearing. For some school officials, rules are rules – no exceptions. But religious liberty, or freedom of conscience, is our nation’s first freedom. Rather than complaining about all those requests for accommodation, we should be celebrating the genius of the First Amendment, which recognizes religious liberty as an inalienable right for people of all faiths and none. It takes work – and accommodation isn’t always possible. But taking claims of conscience seriously should be at the heart of what it means to be an American.”

Religious freedom means freedom for all religions. The Protestants who wrote the rules may never have envisioned a day when Pagan, or Buddhist, or even Muslim students would one day be a part of their societal fabric, but thanks to our (Enlightenment and Deist-influenced) Constitution we have the ability to thrive in that changed world.

That’s all I have for now, have a great day!

David L. Hudson Jr. at the First Amendment Center reports on a recent legal case in which an imprisoned adherent to Asatru (Nordic Paganism) won the right to wear a Thor’s Hammer pendant. Even more remarkable is the fact that the prisoner, Forest Fisher, represented himself in court.

“Inmate Forest Fisher sued the Virginia Department of Corrections (VDOC) and various prison officials after they denied his request for Thor’s Hammer, while allowing inmates of other religions to wear various medallions. Fisher, who proceeded pro se – without an attorney – contended that these actions violated his First Amendment to freely exercise his religious faith, the federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA) and his equal-protection rights under the Fourteenth Amendment.”

The Virginia Department of Corrections’ case wasn’t helped by the fact that prison officials denied Fisher his legal due process in his applications to wear a Thor’s Hammer.

“However, in his May 25 ruling in Fisher v. Virginia, U.S. Magistrate Michael F. Urbanski took issue with the prison officials’ failure to follow their own procedure in submitting Fisher’s request to the Faith Review Committee … Urbanski stressed that the defendants’ arguments “flatly ignore the fact that Fisher submitted the appropriate paperwork to the appropriate institutional employee for FRC consideration, but that the employee failed to forward his request as required under the VDOC FRC procedures.” Because of this, Urbanski ruled that there were enough disputed factual issues to merit a trial on Fisher’s constitutional claims. He also denied the defendants’ request for qualified immunity, a doctrine that enables government officials to avoid liability for constitutional or statutory violations if they do not violate clearly established rights.”

It is cases like this (and the Veteran Pentacle Quest) that remind you that an unwilling bureaucracy can be just as efficient at denying constitutionally protected rights to its citizens as a tyrannical government. It is especially easy for such things to happen in the American prison system where punishment is emphasized (and often encouraged) over rehabilitation, and the public empathy runs low. If this one Asatruar hadn’t stepped up, the quiet banning of a legitimate religious symbol could have continued for years. If religious freedom doesn’t apply to all of us equally, then we don’t have religious freedom.