NMR ISSUE 37

Astrological Forecast 37
Editorial 37
Esoteric Symbology of the Tarot
For Scrying
Hearts, Minds and Single Pigs
Inner Peace, Part II
Letters 37
Meditations on the Elements: Earth
Plastic Needlepoint Pentegram
Prophecy
Seasons of the Witch
Tarot Anyone?
The Machine
The Magical Flute IX:
The Staff of Spring
Whale & Finch

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Tarot Anyone?

By Raymond L. Beck

Interest in spiritual and metaphysical practices is exploding. As the Age of Aquarius is upon us, and as Pluto is entering Sagittarius, this will be expanding further still. The laws must change accordingly. Raymond Beck illustrates how ordinances regulating tarot card reading, mediumship, astrology and channeling, can violate various constitutional guarantees. Raymond analyzes an Illinois ordinance, and discuss national precedent on this matter, including cases from the U.S. Supreme Court.

It recently came to my attention that a tarot card reader in the city of Burbank, Illinois, was threatened with prosecution. There is an ordinance in her South Suburban town that sought to regulate spirit mediumship. This concerned me, and I decided to look into the matter.

The ordinance reads:

Any person or persons who shall obtain any money or property from another by fraudulent devices and practices in the name of, or by means of spirit mediumship, palmistry, card reading, astrology, seership, or like crafty science, or fortune telling of any kind, shall be deemed guilty of a misdemeanor.

I was a little surprised to see an ordinance like this in these days and times. I read it several times, and could not decide whether it was declaring spiritual and clairvoyant activities to be fraudulent, or merely regulating the fraudulent administration of such services. I am a lawyer, and when I am not certain what a law means I research the matter.

Chicago, Schaumburg and Burbank, all have virtually the same ordinance. There are also many other municipalities in Illinois, and all across the country, that regulates fortunetelling. This legislative masterpiece evidently was modeled after the Chicago Municipal Code. It turns out that this ordinance has been interpreted several different times by Illinois courts. There are many constitutional questions regarding this ordinance that have never been directly addressed. Ordinances regulating fortunetelling potentially implicate three different freedoms under the First Amendment of the United States' Constitution: free speech, the free exercise of religion and the improper establishment of religion.

The first Illinois decision on this ordinance was People v. Payne, a 1911 appellate court case. The court ruled that this ordinance was regulating fraud. The only allegation of fraud in Payne was that the defendant pretended that he would hold and did hold communication with departed spirits. The court determined that this was not sufficient to sustain a complaint.

People v. Westergren, a 1912 appellate court case, also addressed this ordinance. An undercover police officer went to the defendant for a reading, pretending that he had lost a brother. He testified that the defendant was mistaken about this and had said other things that were not truthful. The court reversed the conviction, ruling that fraud was not proven. The policeman did not believe or rely upon the defendant's statements, and was not deceived or defrauded thereby. The court also rejected the city's argument that these practices were fraudulent in and of themselves. It declared that the honest practice of the activities named in the ordinance, without fraudulent means, tricks or devices, cannot be held criminal, without stating why this was the case.

This is still a viable ordinance. It remains on the books at least in Chicago, there is the threatened prosecution in Burbank, and there is a recent Illinois case on it as well. The Village of Schaumburg v. Petke, a 1978 appellate court case, followed the two earlier cases. The court reversed the conviction of a tarot card reader. It ruled that the practices named in the ordinance were not fraudulent per se, and that in order to prove a violation of the ordinance, a separate act of fraud must be committed in connection with the performance of one of the practices. There was no proof of fraud there.

All three courts ruled that fraud was the essential element of this offense. Fraud is the material misrepresentation of a known fact, with the intent to deceive, which does in fact deceive the victim. Fortunetelling does not typically deal with known facts; it usually entails predictions or projections about the future. Further, when performed by a reputable practitioner there would be no intent to deceive. Consequently, fortunetelling, without more, cannot sustain a fraud conviction.

None of these cases analyzed the key first amendment issues potentially implicated. Courts do not decide cases on constitutional grounds when there is an alternative resolution available. Fraud, which is not a constitutional matter, provided the basis for these decisions.

I discuss the constitutional issues here because fundamental rights are potentially at stake. While I analyze a local ordinance, much of this discussion applies to other laws around the country that regulate or prohibit fortunetelling. Free speech under the first amendment is concerned with the content of communication and with the free flow of ideas. This ordinance does not infringe on free speech because it regulates fraud, which is not protected speech. But that is not the case when an ordinance regulates fortunetelling itself. A church and its minister sued to enjoin the enforcement of an ordinance in Azusa, California that banned fortunetelling. The California Supreme Court in a 1985 case, Spiritual Psychic Science Church of Truth v. City of Azusa, ruled that the ordinance was unconstitutional. Fortunetelling was held to be protected speech under that state's constitution. Evidently spiritual and palm readings were given at the church.

In Marks v. City of Roseburg, a 1983 appellate court case from Oregon, the trial court enjoined the defendant from performing palmistry that was banned by a city ordinance. The appellate court dissolved the injunction, and ruled that the ordinance violated Oregon's constitution since it interfered with the content of speech. These two cases seem correctly decided to me, though courts do disagree on this matter.

I believe ordinances regulating fortunetelling also violate the free exercise of religion clause. The prevailing legal standard for freedom of religion cases disallows governmental measures that are specifically directed at religious practices, as distinguished from those that are of general application and that only incidentally burden religious activity. While this ordinance may only regulate the fraudulent administration of fortunetelling, and does not infringe on protected speech, it is specifically directed at religious practices nonetheless, improperly isolating certain types of spiritual activities. It does not have a secular or general application. It is constitutionally suspect.

Once it is determined that a law is not of general application (as this one likely is not), then the inquiry becomes whether the beliefs and practices in question merit constitutional protection. Freedom of religion must be analyzed from the believer's perspective, and be defined broadly enough to encompass the diversity of faiths. Excessive judicial inquiries into religious beliefs, may itself, constrain religious liberty. Under the rule established by the U.S. Supreme Court in U.S. v. Ballard, a 1944 case, courts may scrutinize the sincerity of religious beliefs, but not their validity, and they may not inquire into or decide what constitutes a religion or whether particular beliefs or practices qualify as religious. This approach protects religious/spiritual diversity. (I consider those terms to be synonymous in this context.)

Tarot and rune readers, psychics, etc., often use objects of divination to access spirituality, whether the individual's spirit, or higher powers. These practices are of or relating to spirit. They tell us about our higher selves or our spirit, and mediums, channelers and others may also actually be invoking spirits to reveal information. These practices clearly are or can be spiritual, and courts cannot question whether they qualify for constitutional protection as religious practices under Ballard, if the practitioners are sincere in their belief as to the religious or spiritual nature of their activities. Spiritual practices should not be jeopardized by a city ordinance.

This ordinance also has at least an indirectly coercive effect on psychic and spiritual practitioners. They practice at the risk of being prosecuted. They are inappropriately targeted by this ordinance, and they are also erroneously prosecuted for merely performing readings, as you can see from the case law.

There is a less restrictive alternative available to achieve a city's purported objective of protecting a naive public from deceptive practices. The city can simply confine its regulation to fraud in all its forms. Banning fortunetelling would not likely be constitutional. And an ordinance that regulates the fraudulent rendering of fortunetelling (as this ordinance has been interpreted) may also be unconstitutional, but is unnecessary in any event because fraud is already illegal.

This ordinance might also violate the establishment of religion clause of the first amendment. It reflects a Christian morality. Its premise is that Christianity is correct, and that New Age, or non-Christian, Wiccan, or Pagan beliefs, such as spiritual and psychic readings, are fraudulent, evil, or the work of the Devil. Christianity contends that God is outside us to be worshipped and prayed to. Spiritual practices, psychic readings, oracles and articles of divination, such as those named under this ordinance, can help us to empower ourselves. They can shift power from without, as under the Piscean Age, to within, under the Aquarian Age.

The government has no business establishing preferences amongst religions. Our founding fathers came to this country to escape religious persecution. It would be equally improper if this ordinance were to state that it was illegal to fraudulently advise people based upon the Bible, (rather than by using a crafty science). Wouldn't that be doing the same thing that this ordinance does? But it is unlikely you would ever see that ordinance because there is an entrenched Christian majority, and Christianity, or the God without, has been silently established as the state's religion.

Raymond Beck is an attorney, and a spiritual one at that. He served as a prosecutor for the State of Illinois performing criminal appellate and administrative law work. He interpreted and enforced criminal and licensing violations.

He has written articles for Gnosis, Qi and Massage magazines, and also for the Monthly Aspectarian, a local spiritual magazine. He receives tarot, rune, astrology and psychic readings. Ordinances such as this concern him. He wants to help ease the passage into a more spiritual age and to bring about positive changes for the spiritual and metaphysical community.