The Tale of Psychic Sophie: Denouement

Back in December, I wrote a couple of posts about “Psychic Sophie,” —  Part I and Part II — the “spiritual counselor” who was classified as a “fortune-teller” by Chesterfield County and in consequence was deemed to be violating various County zoning ordinances and a licensing requirement.  Psychic Sophie’s free speech, free exercise, and RLUIPA complaint was dismissed by the US District Court for the Eastern District of Virginia, and she appealed to the Fourth Circuit.

Things did not sound very good for Psychic Sophie at oral argument, and, as Kevin Walsh reports, the Fourth Circuit affirmed the grant of summary judgment for the County today.  From Kevin’s post about the opinion:

With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”

From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”

The problem of the legal definition of religion only occasionally vexes courts, and the Supreme Court has never said anything definitive about it for constitutional purposes (Yoder may offer “guidance,” as the court says, but its guidance is not definitive — and I don’t mean that in the least as a criticism ofYoder).  Judge Arlin Adams’s Third Circuit concurring opinion in Malnak v. Yogi many years ago is certainly worth reading as a classic period opinion of the late 1970s on the subject, but it seems to me that the Fourth Circuit’s approach is quite different (different times).

One final note.  Writing for the panel here, Judge Duncan said this: “Yoder teaches that [Psychic Sophie] must offer some organizing principle or authority other than herself that prescribes her religious convinctions, as to allow otherwise would threaten ‘the very concept of ordered liberty.’  Yet [she] forswears such a view when she declares that instead of following any particular religion or organized recognized faith, she ‘pretty much goes with [her] inner flow, and that seems to work best.'”  But, taking care not to “belittle” Psychic Sophie’s beliefs, the court seems to hold here that a self-referential religion of one will not receive protection under the Constitution or RLUIPA.

Perhaps the “Eisenhower principle” has its limits.

Happy Birthday, Edict of Milan

We didn’t want to let the month pass without noting the 1700th anniversary of the Edict of Milan, one of the most important events in the history of religious liberty. In February 313, the emperors Constantine (left) and Licinius met in Milan to discuss imperial business. While there, they agreed to grant religious freedom to Christians–and, incidentally, everyone else in the Roman empire. Their decision came to be known as an “edict,” though it’s not clear an official document ever issued. The historian Eusebius supplies the text:

When I, Constantine Augustus, and I, Licinius Augustus, came under favorable auspices to Milan and took under consideration everything which pertained to the common weal and prosperity, we resolved among other things, or rather first of all, to make such decrees as seemed in many respects for the benefit of every one; namely, such as should preserve reverence and piety toward the deity. We resolved, that is, to grant both to the Christians and to all men freedom to follow the religion which they choose, that whatever heavenly divinity exists may be propitious to us and to all that live under our government.

We have, therefore, determined, with sound and upright purpose, that liberty is to be denied to no one, to choose and to follow the religious observances of the Christians, but that to each one freedom is to be given to devote his mind to that religion which he may think adapted to himself, in order that the Deity may exhibit to us in all things his accustomed care and favor.

Note a couple of things. The edict does not, as commonly believed, make Christianity the state religion. That decision came later, under a different emperor, Theodosius–which suggests that Christians who condemn the “Constantinian compromise” that weakened the faith have got their emperors wrong. And, although it is famous for legalizing the practice of Christianity in Rome, the edict does not cover only Christians. It grants religious liberty to everyone in the empire. Everyone should follow the religion he thinks best, the edict proclaims, so that “whatever heavenly divinity exists” will continue his favors to Rome. Which puts one in mind of Gibbon’s famous jibe: to the magistrate, all religions are equally useful.

At length, Licinius changed his mind about the edict and began persecuting Christians in his part of the empire. A power struggle followed; Constantine eventually defeated Licinius, thereby becoming sole emperor. Constantine was always cagey about his own Christianity, perhaps because he wished to avoid upsetting those powerful Romans who remained pagan. He advanced the interests of the church and influenced (or interfered in) doctrinal developments, but he did not actually become a Christian until shortly before his death. Today, both he and Theodosius are commemorated as saints in Eastern churches. Licinius? Not so much.

Sixth Circuit Dismisses Anti-Religion Sign Suit

In a very interesting opinion, Freedom From Religion Foundation v. City of Warren, the Sixth Circuit ruled yesterday that the City of Warren, Michigan, could retain its yearly holiday display (which includes “a range of secular and religious symbols–a lighted tree, reindeer, snowmen, a ‘Winter Welcome’ sign and a nativity scene), located in the atrium of its civic center between Thanksgiving and New Year’s, without also being compelled to display the following:

At this season of
THE WINTER SOLSTICE
may reason prevail.
There are no gods,
no devils, no angels,
No heaven or hell.
There is only our natural world,
Religion is but
Myth and superstition
That hardens hearts
And enslaves minds.

Placed by the Freedom From Religion Foundation
On Behalf of its State Members
ffrf.org

State/Church
KEEP THEM SEPARATE
Freedom From Religion Foundation
ffrf.org

In his opinion for a unanimous panel, Judge Sutton held that (1) the display does not violate the Establishment Clause because the nativity scene is accompanied by other secular and seasonal symbols; and (2) the display is “government speech” and therefore does not violate the Freedom From Religion Foundation’s free speech rights by refusing to add its anti-religion sign.

Judge Sutton carefully grounded the court’s Establishment Clause holding in the Supreme Court’s holiday display cases–Lynch v. Donnelly and County of Allegheny v. ACLU: “If the multi-purpose, multi-symbol Pawtucket and Allegheny County displays did not offend the Establishment Clause, then neither does the Warren display. The Warren exhibit parallels the Pawtucket one and is less faith-centered than the permitted Allegheny County exhibit.”  He rejected FFRF’s claim that the city’s refusal to display the anti-religion sign demonstrated  a “lack of neutrality between the secular and the religious.” He argued that all of the symbols in the display but one were secular, offering the following interesting discussion:

Some of these symbols allegedly are rooted in pagan traditions . . . . Some are connected to the winter season.  And some embody the most commercial features of the holiday season.  But none of these secular symbols has roots in any one faith or in faith in general.  Look through the Old and New Testaments, even we suspect in their original languages, and you will not find any references to these symbols. It may be true that many of these symbols have become connected to European and American celebrations of Christmas over time, some through the happenstance of the time of year at which the holiday falls (at least in the western part of the Northern Hemisphere) and some through stories written and read over the years. But that did not suffice to invalidate the equivalent display in Lynch; it does not suffice here.

The composition of displays used to commemorate holidays and seasons, moreover, is not static. The breadth of symbols included in the Warren exhibit reflects not just the demands of the Establishment Clause but also the demands of democracy in an increasingly pluralistic country. That presumably is why some cities no longer have such displays, why others have made a point of featuring symbols connected to other faiths (Warren had a Ramadan sign one year) and why a city like Warren would include words conspicuously ungrounded in any faith (“Winter Welcome”). Even the most faith-inspired phrases have taken on secular connotations over time. When one neighbor greets another in mid-December with “Happy Holidays,” it is the rare person who hears “Happy Holy Days.” See Webster’s New International Dictionary 1188 (2d ed. 1950).  What was once the most religious of invocations has become one of the most faith neutral, even secular. One indeed can fairly wonder who has co-opted whom over time with these displays and words. But that is a matter for another day. The key lesson of Lynch and Allegheny County is that a city does not run afoul of the Establishment Clause by including a creche in a holiday display that contains secular and religious symbols.  Warren readily meets that test.

Judge Sutton also rejected FFRF’s claim that certain isolated remarks in a letter written by the Mayor of Warren was proof of the City’s non-neutrality.  And then he said this about a strict separationist approach to the Establishment Clause:

A strict separationist perspective might suggest that the Mayor got carried away when he said that “our country was founded upon basic religious beliefs” and added a few other like-minded sentiments. Id. But the Establishment Clause does not demand strict separation between church and state in governmental words and deeds, even if that were somehow possible. The Mayor indeed could have been more forceful on the point and quoted the Supreme Court in the process: “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). If the Court may say this about American government and if Congress may enact a law devoted to spiritual matters and called the Religious Freedom Restoration Act, all without violating the Establishment Clause, see Wilkinson v. Cutter, 544 U.S. 709, 712–14 (2005), surely the Clause does not stand in the way of the City’s winter solstice-free display and the Mayor’s explanation for it.

It may be true that the Mayor misapprehended the Religion Clauses when he implied that atheists receive no protection from them by saying that the Foundation’s “non-religion” was “not a recognized religion.” In this respect, the Mayor, apparently untrained as a lawyer, may not have missed his calling. The Religion Clauses, it turns out, do protect the religious and nonreligious. Wallace v. Jaffree, 472 U.S. 38, 52–54 (1985). But this defense of his actions, premised on a misreading of precedent, does not transform his actions or the City’s display into an establishment.

Lockley, “Visionary Religion and Radicalism in Early Industrial England”

Last month, Oxford University Press published Visionary Religion and Radicalism in Early Industrial England: From Southcott to Socialism by Philip Lockley (Postdoctoral Research Fellow in the Faculty of Theology, University of Oxford).  The publisher’s description follows.Visionary Religion and Radicalism in Early Industrial England

The political potential of millenarian religion has long exercised the interests of scholars of western history and religion. The religious vision of an imminent messianic age in modernity was once commonly contrasted with secular movements for revolutionary change such as socialism. Recent shifts in historiography and the study of religion have downplayed such comparisons, and yet early industrial England witnessed significant interactions between millenarianism and traditions of radical popular politics, including the first English socialisms. This book offers a new explanation of such interactions, revealing their basis in rich traditions of popular theology and religious practice, and not the collective disillusion and secular conversions once thought. Through a detailed archive-based study of the popular millenarian movement of Southcottianism – the followers of Joanna Southcott – from 1815 to 1840, this work challenges social and gender views of plebeian religion in the period. Adopting innovative approaches in the history of religion, including a view of theology from the perspective of millenarians themselves, this book further overturns existing assumptions about millenarian attitudes to agency, including those of E.P. Thompson’s The Making of the English Working Class. This history of Southcottianism provides a compelling case-study of the political possibilities of visionary religion, revealing how theology framed popular conceptions of human and divine agency in the making of the millennium, and was intimately involved in an early collaboration between the competing Christian and secular visions of transformation which have shaped the modern world.

Donald on Advancing Debate about Religion or Belief, Equality and Human Rights

This month, the Oxford Journal of Law and Religion posted for advanced access Advancing Debate about Religion or Belief, Equality and Human Rights: Grounds for Optimism? By Alice Donald (Senior Research Fellow, Middlesex University School of Law).  The abstract follows.

Legal judgments concerning equality or human rights and religion or belief have frequently provoked controversy in Britain. This article examines why this has occurred. It does not attempt a detailed analysis of the case law; rather, it discusses how the law has been understood and invoked in public discourse. It argues that debate about religion or belief and its place in society has been unduly dominated by particular—and sometimes partial—understandings of legal judgments. It proposes that the most productive level of engagement for those who wish to advance debate, practice and understanding in relation to religion or belief is with ‘front line’ decision-makers, such as public servants and workplace managers. It ventures that in the long term an approach based on human rights principles is likely to be more satisfactory than one which is based principally on equality.