The Scrying Game: The First Amendment, State Regulation of the Crafty Sciences, and the Rise of Spiritualism, 1848-1944

U. S. states and cities have attempted to regulate or ban the practice of the so-called “crafty sciences,” including palmistry, tarot card reading, astrology, and clairvoyance, since before the founding of the Republic. Early statutes banned such practices in the interests of combatting fraud. The rise of the Spiritualist movement emphasized communication with the dead through “rappings” and the use of practices that seemed to resemble these banned activities very closely. Because no “ministerial exceptions” existed in the statutes to exempt Spiritualist practitioners, prosecutors often filed charges against these practitioners for breaking fraud and vagrancy laws. Because many legislators found themselves out of sympathy with Spiritualism in general, they saw no reason to enact “ministerial exceptions” that would protect Spiritualist clergy from accusations of fraud. Consequently, Spiritualist practitioners spent decades arguing, often unsuccessfully, a First Amendment defense in the courts, as intellectual, political, and scientific interest in Spiritualism came and went. While other minority religions came to accommodations with state and federal governments by abandoning or modifying questioned practices, thus coming into less conflict with the legal system over the period I examine, Spiritualists continued to find themselves at odds with the legal system and society until nearly the end of the Second World War. Indeed, this conflict continues to this day. What accounts for the delay in granting Spiritualist practitioners the same First Amendment protections as other religious observers? I suggest that a number of factors were at work, including the fact that Spiritualism was and is a decentralized religion, that it did and does attracts primarily female followers (though not necessarily primarily female practitioners), and that when it first appeared it seemed to display elements of what we would now label a cult, causing members of mainstream religions to distrust its founders and those attracted to it. Further, it required a firm belief in practices that mainstream religions seemed to have abandoned, namely, spirit communication and prophecy — the practice of communicating with the dead and the belief that the dead could communicate messages that could reveal both the existence of life after death and certainty about the future. Many, but not all adherents of mainstream religions had rejected the notion that the dead could communicate anything at all to the living. While some attorneys, judges, and members of the middle and upper classes of society found themselves attracted to Spiritualism, their numbers were not sufficient to overcome prejudices in society against this odd belief system. Spiritualist appeals to a right to free exercise did not prevail until U.S. society in general began to change its attitude toward religion and became somewhat more inclusive, a change in attitude that began slowly and only after the end of the First World War. The case law prior to the 1940s suggests that many judges and juries viewed Spiritualism and its adherents with at best a doubting eye.