In the late nineteenth and early twentieth centuries, a number of people who were arrested for pretending telling fortunes appealed their convictions on religious freedom grounds. These accused fortune tellers, mostly white spiritualist women, were arrested for violating state statutes across the United States, from New York to Georgia to Oklahoma to Washington. Though each defendant lost her case, their arguments showcase previously understudied early twentieth-century attempts by relatively disempowered actors to expand the scope of religious freedom. One law professor, named Blewett Lee, wrote a series of articles in the 1920s in which he considered these cases and their implications, identifying central problems and advancing prescient arguments about religious freedom.
This article thinks with Lee and the accused fortune tellers to highlight two key aspects of secularism and American religious freedom. First, it uncovers the epistemological assumptions embedded into jurisprudence and legislation around “fortune telling.” Many of the statutes, which were based on English vagrancy laws, applied to “persons pretending to tell fortunes.” The term “pretending” raised questions about what the law presumed to be true and whether secular states could adjudicate religious veracity. Second, this article argues that secularism is regulatory and that scholars should connect religious freedom to histories of policing, licensure, and other forms of regulation. These two aspects, one primarily conceptual and the other practical and procedure, work together to delineate the parameters of American religious freedom, as secular state agents both define “religious belief” and regulate believers.
Thanks to Nicole MacMillan, my research assistant through FSU's Undergraduate Research Opportunity Program, who did much of the initial research and talked through this material with me at the project's earliest stages. Northwestern University's North American Religions Workshop read the first draft of the article and provided helpful feedback and conversation. Thanks to Jen Callaghan for facilitating that. Sarah Barringer Gordon and Mike McVicar also read that draft, and I'm grateful for their extensive and incisive comments. Thanks also to Bradley Kime and Haley Iliff, who read and commented on later versions. And, finally, I want to thank the editors and anonymous reviewers at R&AC, whose critiques and suggestions improved this piece tremendously.
1. People v. Ashley, 184 App. Div. 520 (N.Y. 1918); N.Y. Code of Criminal Procedure, § 899.
2. Many scholars of American religion have analyzed the category “religion” and its relevance to religious freedom law. See, for example, Wenger, Tisa, We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom (Chapel Hill: University of North Carolina Press, 2009); Sullivan, Winnifred Fallers, The Impossibility of Religious Freedom (Princeton, N.J.: Princeton University Press, 2005); Weiner, Isaac, Religion Out Loud: Religious Sound, Public Space, and American Pluralism (New York: New York University Press, 2014); and Hurd, Elizabeth Shakman, Beyond Religious Freedom: The New Global Politics of Religion (Princeton, N.J.: Princeton University Press, 2015).
3. Because Reynolds held that the First Amendment's religion clauses applied only to federal law, not to state law, the early twentiethcentury fortune telling cases analyzed here were not, strictly speaking, First Amendment cases. However, all states had protections for religious freedom in their constitutions, and many judges used Reynolds to interpret these constitutional meanings. The religion clauses were not incorporated against the states until the 1940s. The free exercise clause was incorporated via Cantwell v. Connecticut, 310 U.S. 296 (1940) and the establishment clause through Everson v. Board of Education, 330 U.S. 1 (1947).
4. On superstition as a third category in a “trinary,” rather than the religious-secular binary, see Josephson-Storm, Jason Änanda, “The Superstition, Secularism, and Religion Trinary: Or Re-Theorizing Secularism,” Method and Theory in the Study of Religion 30 (2018):1–20. This piece is the lead essay in a four-essay forum on the trinary. “Superstition” and its relation to “religion” in the United States have received some attention from scholars. See Randall Styers, Making Magic: Religion, Magic, and Science in the Modern World (New York: Oxford University Press, 2004), esp. 25-30; Murray, David, Matter, Magic, and Spirit: Representing Indian and African American Belief (Philadelphia: University of Pennsylvania Press, 2007); and Chireau, Yvonne P., Black Magic: Religion and the African American Conjuring Tradition (Berkley: University of California Press, 2003).
5. One trial judge made this distinction quite explicit, writing, “I do not think this is religion; you cannot make this religion with me; it is too fakey.” Jageriskey v. Detroit United Railway, 163 Mich. 631,128 N.W. 726 (1910), 727. On good faith, bad faith, and religious freedom, see also Barry Nobel, “Religious Healing and American Courts in the Twentieth Century: The Liberties and Liabilities of Healers, Patients, and Parents“ (Ph.D. diss., University of California-Santa Barbara, 1991), 55-59.
6. Erika White Dyson, “Spiritualism and Crime: Negotiating Prophecy and Police Power at the Turn of the Twentieth Century“ (Ph.D. diss., Columbia University, 2010), 94. Dyson is primarily interested in how spiritualism became an established organized religion and the internal debates about whether and how to organize. One argument for organization, she shows, was that to become an established church would better afford spiritualists opportunities to receive religious freedom protections and avoid fraud and vagrancy charges. Brandon Lavell Johnson, “Spirits on the Stage: Public Mediums, Spiritualist Theater, and American Culture, 1848-1893” (Ph.D. diss., University of Chicago, 2007) claims to provide a new way of interpreting spiritualism that acknowledges the reality of fraud in mediumistic practice without portraying spiritualist believers—those who really believed they saw spirits in public séances—as unintelligent or dim-witted” (24). What is interesting about Johnson's claim is that he uses the concept of sincerity to talk about true religiosity and as justification for his own scholarly imperative to “take religion seriously.” For Johnson, public mediumship practices were religious and are worth studying because people “really believed” them, even though he acknowledges that in many cases the performances were “fake.” Sincerebelief made them, in some sense, “real.” On the politics of the scholarly injunction to take religion seriously, see Pritchard, Elizabeth A., “Seriously, What Does Taking Religion Seriously’ Mean?” Journal of the American Academy of Religion 78 (December 2010): 1087–1111.
7. Stephen D. Lee's papers are available at the University of North Carolina-Chapel Hill, to which they were donated by Blewett Lee in 1941. The Lee home in Columbus, Mississippi, where Blewett was reared, is now a museum and is on the National Register of Historic Places. See United States Department of the Interior National Park Service, S.D. Lee House National Register of Historic Places Nomination Form, 1969, 71. 5. 28. 0001. <http://www.apps.mdah.ms.gov/nom/prop/19683.pdf> (accessed April 5, 2016). Blewett Lee is mentioned as an original Chicago Law School faculty member in Meltzer, Bernard D., “The University of Chicago Law School: Ruminations and Reminiscences,” University of Chicago Law Review 70 (2003): 236.
8. United States v. Ballard et al., 322 U.S. 78 (1944), 86. On the Ballards, see Braden, Charles S., These Also Believe: A Study of Modern American Cults and Minority Religious Movements (New York: Macmillan Co., 1951 ), 257–307; and Jenna Gray-Hildenbrand, “Negotiating Authority: The Criminalization of Religious Practice in the United States“ (PhD diss., University of California-Santa Barbara, 2013), 127-96.
9. United States v. Ballard, 93.
10. Wenger, We Have a Religion, 13.
11. Asad, Talal, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, 2003), 5.
12. On “secular imaginaries,” see, in addition to Taylor, Charles, A Secular Age (Cambridge: Harvard University Press, 2007), Casanova, José, ed., “Secular Imaginaries,” Special Issue, International Journal of Politics, Culture, and Society 21 (December 2008).
13. On American secularism and governance, see McCrary, Charles and Wheatley, Jeffrey, “The Protestant Secular in the Study of American Religion: Reappraisal and Suggestions,” Religion 47 (April 2017): 256-76. For works that have utilized this Asadian framework, either directly or indirectly, see, for example, Adcock, C. S., The Limits of Tolerance: Indian Secularism and the Politics of Religious Freedom (New York: Oxford University Press, 2013); Fernando, Mayanthi, The Republic Unsettled: Muslim French and the Contradictions of Secularism (Durham, N.C.: Duke University Press, 2014); Josephson, Jason Ä., The Invention of Religion in Japan (Chicago: University of Chicago Press, 2012); Mahmood, Saba, Religious Difference in a Secular Age: A Minority Report (Princeton, N.J.: Princeton University Press, 2015); and Ramsey, Kate, The Spirits and the Law: Vodou and Power in Haiti (Chicago: University of Chicago Press, 2011). See also Scott, David and Hirschkind, Charles, eds., Powers of the Secular Modern: Talal Asad and His Interlocutors (Stanford: Stanford University Press, 2006) and Stack, Trevor, Goldenberg, Naomi, and Fitzgerald, Timothy, Religion as a Category of Governance and Sovereignty (Leiden: Brill, 2015).
14. Gordon, Sarah Barringer, The Spirit of the Law: Religious Voices and the Constitution in Modern America (Cambridge: Harvard University Press, 2010). See also Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).
15. Dean v. Ross, 178 Mass. 397 (1901).
16. MA Gen. L. ch. 266 § 75.
17. Vagrancy Act, 1824, 3 Geo. IV, c. 4. For an overview of secondary sources on vagrancy laws, see Goluboff, Risa, Vagrant Nation: Police Power, Constitutional Change, and theMakingof the 1960s (New York: Oxford University Press, 2016), 351n 7. On vagrancy in the nineteenth-century United States, see Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 167-71. The Vagrancy Act consolidated other laws, including the Witchcraft Act of 1735, which itself repealed the ban on “witchcraft“ (dating, in various iterations, to 1542), but criminalized claims to use “magical powers.” These were replaced by the Fraudulent Mediums Act of 1951, which was repealed in 2008. See “Witchcraft,” <http://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/religion/overview/witchcraft/> (accessed March 10, 2016).
18. To “pretend” does not necessarily mean to deceive. The OED defines it, “To put forward as an assertion or statement; to allege, assert, contend, claim, declare; esp. to allege or declare falsely or with intent to deceive.” Oxford English Dictionary Online, s.v. “Pretend“ (accessed August 10, 2017).
19. Dean v. Ross.
20. People v. Elmer, 109 Mich. 493 (1896).
21. Penny v. Hanson (Feb. 25,1887). Printed in Colt, Frederick Hoare and Witt, John George, eds., The Law Journal Reports, Queen's Bench Division, vol. 56 (London: F.E. Streeten, 1887): 41–42; 42.
23. People v. Malcolm, 90 Misc. 517 (N.Y. Misc. 1915), 520.
24. Ibid. In his decision in People v. Ashley Judge William Kelly approvingly quoted this portion of Nott's opinion.
25. Corcos, Christine A. makes a similar point in “The Scrying Game: The First Amendment, State Regulation of the Crafty Sciences, and the Rise of Spiritualism, 1848-1944,” Whittier Law Review 38 (2017), 60–62. For a recent legal treatment of the First Amendment implications of practices seen as “inherently deceptive,” see Jones, Nicole Brown, “Did Fortune Tellers See This Coming? Spiritual Counseling, Professional Speech, and the First Amendment,” Mississippi Law Journal 83 (2014): 639-70.
26. Perhaps Nott missed the point of the ritual. David Walker has suggested a ritual theory drawn from P.T. Barnum's humbugs: “in order to be considered a humbug (rather than a fraud, a cheat, or someone insufficiently interesting to have any moniker at all), one needed to provide a service. There had to be ‘something there'” (Walker, , “The Humbug in American Religion: Ritual Theories of Nineteenth-Century Spiritualism,” Religion and American Culture 23, [Winter 2013]: 30–74; 40). Even if there were trickery afoot, there could be “something in it” (56). Erika Dyson has made a similar point, suggesting that “the efficacy of these [mediumistic] practices is not necessarily the result of genuine powers but results from both deferral and theatricality, from a mediation between the 'real’ and the ‘really made up'” (“Spiritualism and Crime,” 293).
27. Lee, Blewett, “Spiritualism and Crime,” Columbia Law Review 22 (May 1922): 439-9; 440.
28. Lee, Blewett, “The Fortune-Teller,” Virginia Law Review 9 (February 1923): 262. Lee declined to comment in his writings whether he believed in these practices, but he apparently was not involved with any spiritualist or similar society. In a 1921 essay, he disclaimed “any desire to take a position one way or another upon the occurrence or the real nature of what are called psychic phenomena,” admitting that he knew “nothing more about them than may properly be expected of one who is moderately acquainted with the literature of the subject and has always been fond of ghosts.” In a helpful footnote to that sentence, Lee advised, “The safest place to search for ghosts (always excepting the Bible) is in the ENCYCLOPEDIA BRITANNICA” (Blewett Lee, “Psychic Phenomena and the Law,” Harvard Law Review 34 [April 1921]: 625, 625n1).
29. Gordon, The Spirit of the Law, 15-55; Peters, Shawn Francis, Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution (Lawrence: University of Kansas Press, 2000).
30. Lee, “Spiritualism and Crime.“
31. Such practices, for critics, acted as “modernity's foil,” to borrow Randall Styers's phrase. Making Magic, 26.
32. Lee, “The Fortune-Teller,” 251.
33. See Josephson-Storm, Jason Ä., The Myth of Disenchantment: Magic, Modernity, and the Birth of the Human Sciences (Chicago: University of Chicago Press, 2017). These were the sorts of people, including Sir Arthur Conan Dolye, at whom Harry Houdini took aim when he remarked, “The ancients’ childish belief in demonology and witchcraft; the superstitions of the civilized and uncivilized, and those marvellous [sic] mysteries of past ages are all laughed at by the full grown sense of the present generation; yet we are asked, in all seriousness, by a few scientists and scholars, to accept as absolute truth such testimony as is built up by their pet mediums…” (Houdini, Harry, A Magician among the Spirits [New York: Harper and Brothers, 1924], xx). At the time of his death, Houdini was collaborating with ghostwriter H. P. Lovecraft on a work entitled “The Cancer of Superstition.” The extant thirty-one-page manuscript was discovered in 2016. Alison Flood, “Lost HP Lovecraft work commissioned by Houdini escapes shackles of history,” Guardian, March 16, 2016, <http://www.theguardian.com/books/2016/mar/16/hp-lovecraft-harry-houdini-manuscript-cancer-superstitionmemorabilia> (accessed March 25, 2016).
34. See Sullivan, Winnifred Fallers, “Religion Naturalized: The New Establishment,” in After Pluralism: Reimagining Religious Engagement (New York: Columbia University Press, 2010), 82–97 ; Sullivan, Winnifred Fallers, A Ministry of Presence: Chaplaincy, Spiritual Care, and the Law (Chicago: University of Chicago Press, 2014). See also Masuzawa, Tomoko, The Invention of World Religions: Or, How European Universalism Was Preserved in the Language of Pluralism (Chicago: University of Chicago Press, 2005).
35. Cooper v. Livingston, 19 Fla. 684 (1883).
36. Lee, Blewett, “The Conjurer,” Virginia Law Review 7 (February 1921): 370-77; 371. For more instances of encounters between African conjure practices and American law, see Chireau, Black Magic, 206nn4, 5.
37. Notice also how “African magic” has no temporal signifier whereas “medieval English superstition” does.
38. Lee here illustrates a point Sylvester Johnson has made, citing Homi Bhabha, that the “epoch” of modernity “cannot subsume 'primitive’ peoples because modernity is not really an era so much as it is an effect of the subjectivity of Western conquerors (this is why modern and primitive peoples can encounter each other in real time)” (African American Religions, 1500-2000: Colonialism, Democracy, and Freedom [New York: Cambridge University Press, 2015], 153). Even under the sincerity test, some state agents persisted in the idea that certain religious beliefs are more authentic to certain individuals than others. A consistent religious system, in which beliefs are apparently coherent and match membership and attendance, while not necessarily required to indicate religious sincerity, has been taken as good evidence for it. For instance, when the Federal Bureau of Investigation conducted investigations into conscientious objectors’ sincerity (as they did throughout the 1940s, ‘50s, and ‘60s), they tended to find what might be called “eastern” religious beliefs, whenbelieved by Euro-Americans, to be “political,“ “sociological,” or “philosophical,” or even “merely personal,” rather than religious. One defendant, a member of the Methodist church, was found by the Department of Justice to be sincere but not religious because his pacifist beliefs were influenced by Gandhi and the Fellowship of Reconciliation and not by his own denomination. See United States v. Evans, 115 F.Supp. 340 (D.Conn. 1953).
39. Lee, “The Fortune-Teller,” 251-52.
40. Judge William Kelly cited the same passage in People v. Ashley.
41. Mitchell v. City of Birmingham, 222 Ala. 389 (1931).
42. Lee, “The Fortune-Teller,” 255.
43. Ibid., 265, 266.
44. C. S. Adcock succinctly sums up the point: “the secular state operates to define, constitute, and regulate religion; far from a contradiction in terms, the secular state invariably interferes in religion” (The Limits of Tolerance, 24).
45. McMasters v. State, 21 Okl. Cr. 318 (1922), 327.
46. On church-state separation as jurisdictional, see Smith, Steven D., The Rise and Decline of American Religious Freedom (Cambridge: Harvard University Press, 2014), 136-38,169-71.
47. Wenger, We Have a Religion.
48. See Gordon, Sarah Barringer, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002).
49. On the dependence of American freedom on some people's lack of freedom, see Rana, Aziz, The Two Faces of American Freedom (Cambridge: Harvard University Press, 2010) and Reddy, Chandan, Freedom with Violence: Race, Sexuality, and the U.S. State (Durham, N.C.: Duke University Press, 2011). More generally, see Patterson, Orlando, Freedom, vol. 1, Freedom in the Making of Western Culture (New York: Basic Books, 1991).
50. Vagrancy Act, 1824. “Rogues and vagabonds” included “those who pretend to tell fortunes, or use any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any one; those who publicly expose any obscene print, picture, or other indecent exhibition; those who publicly expose their persons obscenely; those who endeavor by the exposure of wounds or deformities to gather alms; those who endeavor to collect charitable contributions under any false or fraudulent pretence.. .those who publicly play or bet at any game or pretended game of chance.” Cited in Ribton-Turner, C. J., A History of Vagrants and Vagrancy, and Beggars and Begging (London: Chapman and Hall, 1887), 236.
51. Goluboff, Vagrant Nation, 2. See also Beier, A. L. and Ocobock, Paul, eds., Cast Out: Vagrancy and Homelessness in Global and Historical Perspective (Columbus: Ohio State University Press, 2009). Euan Cameron has argued that the church in England, whether Catholic or Protestant, supported vagrancy statutes because they helped control the poor and stamped out “folk” practices that undermined church hierarchy and uniformity (Enchanted Europe: Superstition, Reason, and Religion, 1250-1750 [New York: Oxford University Press, 2010], 175).
52. Ribton-Turner, A History of Vagrants and Vagrancy, vii.
53. On the history of English vagrancy laws, see Stephen, James Fitzjames, A History of Criminal Law in England, vol. 3 (London: Macmillan, 1883), 266-75. See also Slack, Paul, Poverty and Policy in Tudor and Stuart England (London: Longman, 1988).
54. NC Gen Stat § 14-401. 5.
55. PA Code ch. 71 § 7104.
56. Goluboff, Vagrant Nation, quotation p. 9.
57. See Slack, Poverty and Policy in Tudor and Stuart England, 96-97. See also Beier, A. L., Masterless Men: The Vagrancy Problem in England, 1560-1640 (London: Methuen, 1985), 222.
58. On legal restrictions of movement in urban spaces, see Levi, Ron, “Loitering in the City that Works: On Circulation, Activity, and Police in Governing Urban Spaces,” in Police and the Liberal State, ed. Dubber, Markus D. (Stanford: Stanford University Press, 2008), 178-99.
59. Goluboff, Vagrant Nation, 3.
60. Ribton-Turner, A History of Vagrants and Vagrancy, 200. These rogues often turned to entertainment, such as legerdemain and fortune telling, as a way to subsist. It is important to note that simply being an entertainer was not illegal in most cases. The 1740 statute banned not all entertainers but those “without authority, by virtue of letters patent.” Historian A. L. Beier explains, “Not all showpeople were vagabonds by law, because those patronized by noblemen and corporations were protected. Royal licenses and the establishment of permanent companies were additional ways to escape prosecution” (Masterless Men, 97). Patronage and licensure legitimated entertainers’ livelihoods. Vagrants were by nature out of place in the traditional or legitimate economy. A fortune teller, dancer, or juggler who obtained some form of authorization was, by definition, not a vagrant. Nevertheless, there were certain forms of entertainment— those based on “pretending“—that remained particularly suspect.
61. Dyson identified four kinds of criminal charges with which spiritualists were most commonly charged: (1) “obtaining money under false pretenses“; (2) mail fraud; (3) unlicensed medical practice; and (4) “as fortune-tellers, which was a species of vagrancy is some states, and a disorderly persons charge in others” (“Spiritualism and Crime,” 189-90).
62. For example, Anthony Comstock, founder of the New York Society for the Suppression of Vice and champion of anti-obscenity laws, was obsessed with fraudulence and argued that fraud itself—whether in lotteries, medical quackery, greengoods games, or some other scam— was necessarily irreligious and immoral. Comstock's moral critique of “infidels” was a broad indictment of citizens who viciously and fraudulently represented value—financial, material, or spiritual—where there absolutely was none. See Comstock, Anthony, Frauds Exposed; Or, How the People Are Deceived and Robbed, and Youth Corrupted (New York: J. Howard Brown, 1880). See also Pinkerton, Allan, Strikers, Communists, Tramps, and Detectives (New York: G.W. Carleton, 1878). William McAdoo, as New York City police commissioner and later as chief magistrate, unsuccessfully advocated the expansion of the purview of vagrancy statutes. See McAdoo, William, Guarding a Great City (New York: Harper & Bros., 1906), 320. Cited in Dyson, “Spiritualism and Crime,” 367n 134. Tammy Stone-Gordon also mentions police crackdown on fortune tellers in New York after 1910. Four women—Maude Leslie, Isabella Morrison, Isabella Goodwin, and Adele Preiss [sic; her last name was Priess]—did a significant amount of the undercover sting work. Stone-Gordon surmises, “That women were charged with gathering the evidence against seers indicates that police (and women's reform groups) saw prophecy as a moral crime, one that endangered the moral character of young people, and in the case of fortunetelling, young women” (“'Fifty-Cent Sybils': Occult Workers and the Symbolic Marketplace in the Urban U.S., 1850-1930” [Ph.D. diss., Michigan State University, 1998], 232). For a firsthand account, see “How I Had 54 Persons Arrested and What I Found Out About Palm-Reading,” Ladies Home Journal 28 (August 1911).
63. See Fronc, Jennifer, New York Undercover: Private Surveillance in the Progressive Era (Chicago: University of Chicago Press, 2009) and Dubber, Markus Dirk, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005). On the press and advertising bans, see Stone-Gordon, chapter 6, “'Wholesale Raids on Fortunetellers': Urban Myths and the End of Seer-Centered Advertising,” in “'Fifty-Cent Sybils.'“
64. Walker, “The Humbug in American Religion” 46. The quotation is from the New York Herald.
65. Ibid., 50.
66. “Spiritualism Is Jugglery,” New York Herald, August 24, 1865. Cited in Walker, “The Humbug in American Religion,” 47.
67. Oxford English Dictionary Online, s.v. “Juggler” (accessed June 5, 2016). See also Shakespeare, Macbeth 5. 8.19-20: “And be these juggling fiends no more believed/That palter with us in a double sense.“
68. See Mahmood, Religious Difference in a Secular Age. As Mahmood shows, licensure is a mundane aspect of secular governance, but it can be quite powerful, producing religions and religious difference. On fortune telling, licensure, and regulatory secularism, consider this anecdote: “A particularly vivid case of National Spiritualist Association mediums being targeted is the arrest of Ida Strack, the wife of [National Spiritualist Association] secretary Harry P. Strack in 1929, for not taking out a fortune-telling license. Ida's case was very much seen as a test case for the license on fortune tellers in Washington, D.C. Wade Combs, the head of the Licensing Bureau in D.C. made it clear that he wanted to force NSA mediums to comply with the law, and he picked Ida because of Harry's position on the NSA board. When Ida lost her case in 1930, N.S.A. Spiritualists, with the help of Senator Al Capper did manage to push an exemption for the law through Congress, although this too was eventually repealed” (Dyson, “Spiritualism and Crime,” 208-209n55).
69. OH Code § 13145.
70. Davis v. State, 118 Ohio St. 25 (1928).
71. NC Gen Stat § 14-401. 5.
72. Carol Silverman, “Everyday Drama: Impression Management of Urban Gypsies,” Urban Anthropology 11 (Fall-Winter 1982): 377-98. Some of the English statutes specifically outlawed pretending to be “gypsies.“ British historian Frank Aydelotte noted this in his early twentieth-century treatment of vagrancy: “There are several statutes against English vagabonds disguising themselves as gipsies or wandering in company with them, which indicates that there were some relations between the two races. English vagabonds soon began to practise the fortune-telling which made the gipsies so welcome to the country people everywhere” (Elizabethan Rogues and Vagabonds [Oxford: Clarendon Press, 1913], 18). Some municipalities in the United States picked up on this idea. Front Royal, Virginia, for instance, outlawed “fortunetelling or practicing magic art” with this language: “It shall be unlawful for any company of gypsies or other strolling company or person to receive compensation or reward for pretending to tell fortunes or to practice any so-called ‘magic art'” (Municipal Code 110-17). The statute was repealed in 2014.
73. There were a few local exceptions, as when bans responded directly to specific incidents. For example, in 1915, the police chief of Anaconda, Montana, issued an order “stopping all spiritualists, mediums, trance mediums, clairvoyants and similar practitioners from continuing their readings and prophecies. This order was issued as the result of the investigations made at the time Tina Haakla, a kitchen maid at the Silver Bow club, was duped out of $565 by Katherine Boboska, a gypsy who claimed Indian blood and the power of healing disease” (“Mediums Are under Police Chief's Ban; an Indian Practitioner Starts the Trouble,” Anaconda Standard, July 30,1915, p. 7). Tammy Stone-Gordon, in her study of seers and the press, notes that in New York's arrest reports from 1909-1917 (during the heaviest crackdown on mediumistic practices), only eight “mentioned the seer's ethnic or religious affiliation: African-American (2), Muslim, Japanese, German Spiritualist, Hindu, Gypsy and Syrian” (“'Fifty-cent Sybils,'” 241).
74. See Josephson-Storm, The Myth of Disenchantment.
75. See McGarry, Molly, Ghosts of Futures Past: Spiritualism and the Cultural Politics of Nineteenth-Century America (Berkeley: University of California Press, 2008) and Braude, Ann, Radical Spirits: Spiritualism and Women's Rights in Nineteenth-Century America, 2nd ed. (Bloomington: Indiana University Press, 2001 ). Class is important here, too. Even “purely” as a form of entertainment, by the late nineteenth century, fortune telling and spiritual mediumship were considered less “respectable“ as the “entertainment industry was swiftly moving toward professionalization and regulation” (Johnson, “Spirits on the Stage,” 14).
76. See Dyson, chapter 2, “They Speak in Thunder Tones, 'ORGANIZATION!': The Founding of the National Spiritualist Association,“ in “Spiritualism and Crime,” 33-118. For the most part, members of the NSA or other spiritualist society did not receive ministerial exemptions until the mid-twentieth century. Christine Corcos has noted that, in a few cases, such exemptions were written into vagrancy statutes earlier in the twentieth century, in Illinois (1911), New York (1929), and Nebraska (1940), though she does note that the New York amendment was not interpreted in such a way until 1943 (“Seeing It Coming since 1945: State Bans and Regulations of ‘Crafty Sciences’ Speech and Activity,” Thomas Jefferson Law Review 37 [Fall 2014]: 39-114; 53-63). See also Corcos, “The Scrying Game,” 3n 10.
77. Barrett, Harrison D., “Protection for Mediums,” Washington Post, December 14, 1896.
78. State v. Neitzel, 69 Wash. 597,125 Pac. 939 (1912).
79. Rem. & Bal. Code, SS 2688; 125 Pac. 939.
80. The People ex rel. Adele D. Priess v. Evangeline S. Adams (Dec. 11,1914), printed in Mills, Charles, ed., The New York Criminal Reports, vol. 32 (Albany: W. C. Little & Co., 1915), 326-5. See also Levine, Nick, “The Dignity of an Exact Science: Evangeline Adams, Astrology, and the Professions of the Probable, 1890-1940” (Senior Thesis, Yale University, 2014). Adele Priess was one of the most active police informants and participated in many stings.
81. These should not be seen as contradictory arguments, as Neitzel thought science and religion were harmonious. Here his argument anticipates that made by L. Ron Hubbard, who considered Scientology a “scientific religion.” The blurred line between science and religion worked against Hubbard's efforts to receive tax exemption. See Founding Church of Scientology v. United States, 412 F.2d 1197 (Ct. Cl. 1969). On Scientology and the law, see Urban, Hugh B., The Church of Scientology: A History of a New Religion (Princeton, N.J.: Princeton University Press, 2011). Many thanks to Mike McVicar, who pointed out the similarities between Neitzel's and Hubbard's frameworks.
82. State v. Neitzel.
83. McMasters v. State, 21 Okl. Cr. 318 (1922).
84. Section 1, chapter 59, Oklahoma Session Laws of 1915. As cited in McMasters v. State.
85. On mediums channeling Native Americans, see McGarry, Ghosts of Futures Past, chapter 2, “Indian Guides: Haunted Subjects and the Politics of Vanishing” and Troy, Kathryn, The Specter of the Indian: Race, Gender, and Ghosts in American Seances, 1848-1890 (Albany: SUNY Press, 2017).
86. McMasters v. State, 322.
87. Perhaps it is not surprising that those legal thinkers who believed—or at least found it possible to believe—in the “reality” of the practices in question tended to write in defendants’ favor. It is easier to “take seriously” others’ beliefs when one is sympathetic to or in agreement with them. In The Impossibility of Religious Freedom, Winnifred Sullivan makes a similar point, noting the difficulties Judge Kenneth Ryskamp had in understanding claimants’ religious practices and his tendency to attempt analogies or connections to his own religious beliefs and practices. This point, again, is unsurprising, but it underscores the fact that individual background and experience matter, even when objectivity and fairness, blind justice, are stated principles. While scholars should not pin too much on individual judges’ religious backgrounds, as if religious belief is a sure cipher for a person's deepest motivations (though this is how “religion” is often added to certain historiographical conversations), it is analytically fruitful to focus on secular agents rather than a monolithic secular state.
88. McMasters v. State, 326.
89. Ibid., 323.
90. People v. Ashley, 521.
91. See also Davis v. State, 118 Ohio St. 25 (1928). Gertrude Davis was a pastor at the Asti-Universal Church in Cleveland. As in the McMasters case, the judge determined it was not legally relevant whether she was a pastor or not, nor whether the church was religious or not, since Davis “would have no greater right as a spiritualist or as a message bearer to tell fortunes contrary to the statute than the members of any other religious or secular group or system of religion or denominational religion,” citing Neitzel and Reynolds.
92. Similar processes occurred around the same time in numerous venues, including medicine, as private philanthropic financiers and state regulatory bodies collaborated to professionalize medicine and root out alternative medical practices. See Richard Brown, E., Rockefeller Medicine Men: Medicine and Capitalism in America (Berkeley: University of California Press, 1979).
93. Thanks to Mike McVicar for making this point explicit and for offering the evocative phrase “alternative licensure.“
94. Dyson, “Spiritualism and Crime,” 305-6. Dyson found Ashley's applications for licensure in the Archives of the National Spiritualist Association of Churches, Lily Dale, N.Y.
95. Dyson, “Spiritualism and Crime,” 306n 7. Dyson reports that this is the earliest date she had found Ashley offering services in her home, but the notice she cites advertised a Sunday afternoon meeting at Tax Hall (“Religious Notices,” Brooklyn Eagle, April 16,1898). The earliest advertisement I have found that lists Ashley's home address is from January 1899. It advertises “a spiritual meeting, especially devoted to tests” at her home on Tuesdays and Wednesdays in addition to the Sunday Tax Hall meeting (“Religious Notices,” Brooklyn Eagle, January 21,1899).
96. List of Sermons, Brooklyn Daily Eagle, May 11, 1907. <http://bklyn.newspapers.com/image/54484140/> (accessed January 30, 2016).
97. People v. Ashley, 523.
98. For a similar argument but in a much earlier case, with a different outcome, see State of Ohio v. Abigail Church, Gallia Common Pleas Court, May Term, 1823. Printed in Reprint of Ohio Cases Published in the Weekly Law Gazette, Law and Bank Bulletin, American Law Register, Ohio Law Journal, vol. 3 (Norwalk, Ohio: Lansing Printing Co., 1897), 85-
91. The issue of monetary payment, which came up in many fortune telling cases and was included in many of the statutes, has come up repeatedly in the history of religion and law. Charging fees for certain religious services is legal, of course, but courts also have found that fixed pricing indicates a quid pro quo exchange and is thus taxable. Hernandez v. Commissioner, 490 U.S. 680 (1989).
99. Biographical information on Kelly from “William J. Kelly,“ Historical Society of the New York Courts. <http://www.nycourts.gov/history/legal-history-new-york/history-legal-bench-appellate-02.html? http://www.nycourts.gov/history/legal-history-new-york/luminariesappellate/kelly-william.html>
100. Kelly was quoting Deuteronomy 18:10-12 from the Douay-Rheims Bible. Translations of this passage vary significantly. As mentioned above, the same passage was cited in Mitchell v. City of Birmingham (1931). It is worth noting that at the time of this translation (early seventeenth century), English law classed “wizards” alongside fortune-tellers as vagabonds, distinguished from witches. See Beier, Masterless Men, 103-5.
101. People v. Ashley, 522.
102. In addition to Reynolds, he cited the Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1 (1890) and People v. Pierson, 176 N.Y. 201 (1903).
103. Cumming, Robert C. and Gilbert, Frank B., eds., Annotated Consolidated Laws of the State of New York, 2nd ed., vol. 1 (Albany: Banks Publishing Co., 1920), 2.
104. See also Dill v. Hamilton, 137 Neb. 723,291 N.W. 62 (1940), wherein the Supreme Court of Nebraska held, “The police power to prohibit public exhibitions for money-making purposes or ‘for gain’ extends to harmful, immoral, or indecent performances, though conducted in the name of religion. These are evils against which the statute is directed.“
105. This tradition includes Kelly's fellow New Yorker Anthony Comstock. See Comstock, Frauds Exposed.
106. Blewett Lee, “The Fortune-Teller Again,” Virginia Law Review 16 (November 1929): 54. The case was State v. Delaney, 122 Atl. 890 (N.J. 1923). See also Antieau, Chester J., “The Limitation of Religious Liberty,” Fordham Law Review 18 (1949): 221-41. He discusses fortune telling, noting the exceptionality of State v. Delaney in 237n 108. Antieau did not cite any of Lee's work.
107. N.Y. Laws 1929, c. 344.
108. Lee, “The Fortune-Teller Again,” 56.
109. One judge in 1944 again noted this ambiguity but concluded, “The word ‘pretend’ in the statute simply means that the Legislature was skeptical of anyone's ability to foretell future events and used the word in the sense of ‘make claim,’” and thus the person's sincerity is not enough to exempt them. People v. Strong, 183 Misc. 291 (N.Y. Misc. 1944), 292. The case was before the City Magistrate's Court of New York, Borough of Manhattan. The defendant was convicted, but the Court of Appeals overturned the ruling. People v. Strong, 53 N.Y.S. 2d 941 (1945).
110. People on Complaint of Mirsberger, 46 N.Y.S. 2d 206 (1943). Christine Corcos has argued that this case “prefigured” the Supreme Court's decision in Ballard (“The Scrying Game,” 101).
111. This shift was clearest in statutory exemptions for conscientious objectors. With the 1940 Draft Act, Congress eliminated the requirement that objectors belong to a historic “peace church,” instead applying the exemption to anyone “who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” In 1948, Congress clarified the meaning of this phrase, which meant “an individual's belief in a relation to a Supreme Being,” a phrase they borrowed, swapping “God” for “Supreme Being,” from Chief Justice Charles Evans Hughes's dissent in United States v. Macintosh, 283 U.S. 605 (1931), at 633-34. Hughes's dissent also invoked sincerity twice, to refer to what people “sincerely believed to be” their “duty of obedience to God” or “allegiance to the will of God” (630, 631). Selective Service Training and Service Act of 1940, Pub.L. 76-783, 54 Stat. 85 (1940). In U.S. v. Seeger (1965) the Supreme Court significantly broadened the meaning of “religious belief” by shifting the emphasis from the content believed to the way it was believed. The Court interpreted the test of religious belief required for conscientious objection to test “whether it is a sincere and meaningf ul belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption.“ The unanimous Court in Seeger relied on a broad interpretation, using Ballard's sincerity test, in order to preserve the statute's constitutionality. In so doing, they effectively individualized religious belief, which might have empowered individuals but also empowered the investigative, regulatory secular state to be the sole arbiter of which beliefs are indeed religious in character.
112. See Su, Anna, “Judging Religious Sincerity,” Oxford Journal of Law and Religion 5 (2016): 28–48 ; Ben Adams and Cynthia Barmore, “Questioning Sincerity: The Role of the Courts after Hobby Lobby,” Stanford Law Review Online 67 (November 7, 2014).
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