Tag Archives: Definition of Religion

The Weekly Five

This week’s collection of new pieces on SSRN includes an article on Catholic objections to Legal Realism by John Breen and Lee Strang;  a history of Just War theory by Robert Delahunty; an article by Zoe Robinson on the definition of “religious institutions” in connection with the Contraception Mandate litigation; and two essays by Micah Schwartzman on religious and secular convictions.

1. John M. Breen (Loyola University Chicago) and Lee J. Strang (University ofToledo), The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism. This article examines the critique of Legal Realism by Catholic scholars in the 1930s and 1940s. Legal historians have unfairly neglected this critique, the authors say, which was both profound and systematic. Catholic legal thinkers who objected to Realism drew on the worldwide revival of Neo-Scholastic philosophy taking place at the time.

2. Robert J. Delahunty (University of St. Thomas), The Returning Warrior and the Limits of Just War Theory. In this paper, Delahunty traces the history of the Just War tradition in Christian thought. Before the twelfth-century Papal Revolution, he writes, the Catholic Church treated the subject in a pastoral, unsystematic way. Soldiers who had killed in wartime were typically required to do penance. In the Papal Revolution, however, the Church transformed itself into an early modern state, equipped with a military force. “As an essential part of this epochal transformation, the Papal program required the Church to abandon its earlier skepticism about war and to settle on the view that war could be justifiable, even sanctified.”

3. Zoe Robinson (DePaul University), The Contraception Mandate and the Forgotten Constitutional Question. Robinson maintains that arguments about the ACA”s Contraception Mandate often neglect the first question: whether the claimants are “religious institutions” that merit constitutional protection. She develops a list of four factors that identify such institutions: “(1) recognition as a religious institution; (2) functions as a religious institution; (3) voluntariness; and (4) privacy-seeking.” Applying these factors, she argues that religious universities qualify as religious institutions, but not for-profit businesses or religious interest groups.

4. Micah Schwartzman (University of Virginia), Religion as a Legal Proxy. In a response to Andrew Koppelman, Schwartzman argues that affording legal protection to religion as such unfairly discriminates against people with non-religious commitments. He argues that the concept of religion should be expanded to include secular claims of conscience. A wide range of international and domestic laws already do so, he points out. Against the backdrop of these laws, the First Amendment’s singling out of religion “feels somewhat antiquated.”

5. Micah Schwartzmann (University of Virginia), Religion, Equality, and Public Reason. This is a review of Ronald Dworkin’s posthumous work, Religion without God, in which Dworkin argues that, as a moral matter, both religious and non-religious convictions deserve legal protection. Schwartzman agrees, but argues that Dworkin unfortunately resisted using the concept of public reason, familiar from the work of John Rawls and others. Schwartzman believes that reliance on public reason is “inevitable” for those, like Dworkin, “who accept that believers and nonbelievers deserve equal respect for their competing and conflicting views.”

UK Supreme Court: Religion Does Not Require God

Last week, the Supreme Court of the United Kingdom–since 2009, the highest court in the UK–handed down what looks to be a significant decision on the meaning of “religion” in English law. The decision suggests that, for legal purposes, religion does not require a belief in God.

The case involved a couple who wished to marry in a Scientologist church in London. Under English law, marriages performed in a “place of religious worship” are considered valid. Nonetheless, the couple faced a problem. In 1970, an English court concluded that Scientology is not a religion, because Scientology does not hold a belief in God. So, when the couple sought to have their church certified as a place where marriages might take place, the relevant government official refused: if Scientology is not a religion, a Scientologist church cannot be a “place of religious worship.” The couple then sued.

Last week, the Supreme Court sided with the couple. The 1970 opinion was wrong, the court held. Scientology is indeed a religion. For one thing, Lord Toulson’s opinion explained, Scientology does hold a belief in a supreme deity, albeit an impersonal and abstract deity. Anyway, belief in a deity is not necessary. Religion, Lord Toulson wrote, means:

a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system…. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the sense or from science.

On this definition–and Lord Toulson made clear he was not announcing a categorical test for all circumstances–Scientology qualifies as a religion. The court ordered the government to certify the couple’s church as a place where valid marriages could take place.

There’s a lot going on in Lord Toulson’s opinion, and I can’t do it justice in a short post. Three observations, though. First, it seems entirely correct to say that “religion” does not necessarily mean a belief in God. Some versions of Buddhism do not hold a belief in a deity, for example, and it would be very odd to have a definition of religion that excluded Buddhism. I don’t know enough about Scientology to know whether it should be considered a religion, but the fact that it is not conventionally theistic shouldn’t be dispositive.

Second, it seems correct that religion must have some supernatural component. Otherwise, religion collapses into philosophy. Of course, we might protect strong secular convictions in addition to religion. In fact, the European Convention on Human Rights protects both religious and secular convictions. But the relevant English law in this case speaks of “religious worship,” not “secular convictions,” and pretty much everybody knows the difference between the two. It doesn’t do any good to pretend a law is vaguer than it is.

Finally, note Lord Toulson’s insistence that religion involves a group of adherents. This is very significant. Religion is inherently communal, and some of the most important benefits the state derives from religion–for example, greater civic participation–depend on religion’s being a group activity. In America, some people have begun to argue for a very individualistic definition of religion, one in which a sole practitioner, following her own inner voice, can qualify as a religion for legal purposes. Earlier this year, a federal appeals court rejected this view, and there are good reasons to do so. I’ll have more to say about all this is a forthcoming paper, to be published next month by the European University Institute. I’ll post more on this subject then. 

The case is R (on the application of Hodkin and another) v. Registrar General of Births, Deaths and Marriages (Dec. 11, 2013).

Arsheim on the Meanings and Uses of Religious Freedom

Helge Årsheim has an interesting piece on the Immanent Frame blog which recapitulates some of the debates that he has been sponsoring at his PluRel blog (to which I gladly contributed) and offers some thoughts of his own, particularly as respects the meaning and scope of religious freedom in the international sphere. Below is an extended chunk from Helge’s post. The only little addendum to it that I’d make here is that the extent to which US domestic law is “splendidly isolated” from international law is, of course, famously a matter of both descriptive and normative contestation within the US legal community! Here’s Helge:

The international law on religious freedom is not limited to religion, but denotes a set of legal measures set in motion to protect beliefs and their ”manifestations” from undue limitations and interference. Explicitly covering beliefs well beyond the confines of any traditional definition of religion, the right as it is codified in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and surrounding legal texts – collectively known as the International Bill of Rights – does not require legal systems, whether international or domestic, to decide on the merits of one religion over another. The expansive nature of the freedom of religion or belief in international law thus provides an unequivocal answer in the negative to the overarching question in all dealings with religion in political or legal contexts: whether religion is a special, set apart, sui generis concept that requires particular attention and protection over other concerns. Religion, as it is construed in international legal texts, is just one subset of an expansive range of protected beliefs that can be subjectively held without any form of state interference. While the inclusion of terms like “manifestation,” “observance,” “belief,” and “conscience” are drawn from, and therefore clearly favor, certain religious traditions to the exclusion of others, their interpretation in the practice of the UN Human Rights Committee are explicitly detached from a religious framework.

Once the serene, inclusive, and clear-cut concept of religious freedom in international law is confronted with the myriad cultural, historical, political and academic iterations of religious freedom that dominate domestic legal practice, however, the content of “religion and belief” moves from being non-theist and inclusive to a more ambivalent status: in these competing visions of what religious freedom may or may not be, the contents of both “religion” and its relation to “freedom” is hotly contested. These contestations take place across a wide array of societal spheres, and concern the origin and metaphysical status of religion in society and the political sphere; what groups, doctrines and practices can be construed as “religious” and competencies and duties arising from this identification; and the relationship between majority and minority religious traditions in history and culture. Contrary to the dictates of international law, the vast majority of competing visions of religious freedom in the domestic sphere are united by their emphasis on the determination of religion as religion….

While the disconnect between international and local conceptions of religious freedom is well known and has been decisive to the development of the “margin of appreciation” doctrine of the European Court of Human Rights, the exchange at the PluRel blog displays a number of different positions on how this disconnect can and should be interpreted. Winnifred Sullivan observes in her inaugural post that US law is “…constantly bumping up against the unstable collection of social facts that have come to be assembled under the word “religion,”” and that for this reason, we should “find some other words.”. At the other end of the spectrum, Marc O. DeGirolami observes that US legal actors believe that religion is a “special cultural phenomenon,” the definition of which should be based on analogies to “historical and culturally contingent settlements,” rather than findings from the “academic study of religion.”

Sullivan and DeGirolami prescribe solutions that display very different views of the power of law, but share a basic conviction that social practices that can fall under the rubric of religion are worthy of legal protection or non-interference. Where Sullivan suggests that law is unable to grant this form of protection due to its preference for certain majority traditions over lived religious practice, DeGirolami seems to consider this preference part of the culturally contingent settlements on which law relies, a preference that cannot be unsettled by the findings of academics. Although one would expect a cultural affinity between US and international law on religious freedom in their shared preference for Protestant conceptions of religion, neither Sullivan nor DeGirolami address the international legal framework, demonstrating the splendid isolation of US legislation and jurisprudence on this issue. This isolation is a common feature of US law, which has a longstanding tradition of ignoring international law. Additionally, the turning point of the non-establishment clause of the US constitutional law on religious freedom is the neutrality of the state, an issue entirely outside the purview of international law.

Continue reading

Hurd on Religious Difference and Religious Freedom

Elizabeth Shakman Hurd has an interesting post over at Helge Årsheim’s blog rounding out the discussion of religious freedom that began with Winni Sullivan’s reflections and to which I contributed as well (see here and here). I have long thought that there is an important intellectual root in the criticisms of religious freedom that both Beth and Winni advance in the work of Talal Asad (probably I am not the first to make this observation), and so I am glad to see Beth refer back to him here. Here’s a bit from Beth’s smart post:

As someone who studies the politics of secularism and religion comparatively and internationally, I became interested in religious freedom promotion because, quite simply, everyone is for it. Both liberal internationalists and those affirming a divine origin of the right to religious freedom, and almost everyone else, seem to have accepted the notion of religious freedom as a fundamental human right, legal standard, and social fact that can be objectively measured and achieved by all political collectivities. It is a matter of persuading people and governments to understand and comply with a universal standard. Peace, inter-communal harmony and prosperity will follow. States and societies are positioned along a spectrum of progress, inclined either toward the achievement of religious freedom as a social fact, or slipping back into religious persecution and violence caused by religious hatred….

This dominant storyline elicits a number of concerns. One is the extent to which it presupposes a direct convergence between the rule of law and social justice. As Talal Asad has observed of the [Universal Declaration of Human Rights], but which also applies to efforts to globalize and legalize religious freedom, “the rule called law in effect usurps the entire universe of moral discourse.” Asad concludes that this equation privileges the state’s (or associations thereof) norm-defining function, “thereby encouraging the thought that the authority of norms corresponds to the political force that supports them as law.” There is no space for non-state norms. Religious freedom, one could say, effaces the distinction between law and justice. It has, as Paul Kennedy has observed of human rights, “captured the field of emancipatory possibility.”

In my experience these concerns about religious freedom only multiply and intensify the more one considers the diverse histories and politics that attend religious freedom advocacy. Over the past three years I have co-directed the Politics of Religious Freedom project, a collaborative effort to study the discourses of religious freedom in South Asia, North Africa, Europe, the United States, sub-Saharan Africa, and Brazil. In re-describing the historical and cultural assumptions underlying national and international projects to promote religious freedom, we have sought to unsettle the agreement in policy circles that religious freedom is a singular achievement, and that the problem lies in its incomplete realization. Is it possible that a norm intended to secure human flourishing and peaceful co-existence could in some circumstances enact the opposite?

Religion without God

Religion without God is the late Ronald Dworkin’s last work, published posthumously in September. It’s a short book; a publisher’s note explains that Dworkin planned to expand the work greatly before he fell ill. Still, the book is important. Not that it says anything especially new. As far as I can tell, in fact, the book repeats familiar, even ancient, objections to the idea of a personal God and proposes a legal definition of religion that is decades old. Religion without God is important, rather, because it reflects the worldview of  a celebrated liberal philosopher sympathetic to religion but unable to believe in God, and because it reflects an increasingly important strategy in the Left’s battle to minimize protection for traditional religion.

Religion without God has two main points, one about the nature of religion and the other about religious freedom. In the first part of the book, Dworkin argues that religion, properly understood, does not require a belief in God. Religion requires only a belief in objective meaning and a sense of wonder at the sublime quality of the universe. Many atheists believe in objective meaning and view the universe with a sense of wonder, Dworkin writes, and are thus, in their way, “religious.” Dworkin hopes this insight will dampen the conflict between atheists and believers in contemporary Western culture. Both sides agree on the essential things, he argues; disagreement on the existence of God is only a minor detail.

Take objective moral values, for instance. Many theists believe moral values depend on the existence of a personal God. If God had not told us, or implanted the knowledge in us, we would not know what is right and what is wrong. This is logically incorrect, Dworkin says. Objective values must exist independently of God’s will. Otherwise, God could make conduct ethical simply by commanding it, and that would be entirely arbitrary. What if God ordered you to murder your family members? Would that make the murders right? No, the murders would be wrong, whatever God told you. So God is superfluous to moral reasoning–no more than a possibly helpful guide. Once they recognize this, Dworkin argues, believers will see that their differences with atheists–at least with “religious atheists”–are insignificant.   

This argument tracks the famous Euthyphro dilemma, to which Dworkin alludes at the very end of his book. Christianity–I don’t know about other traditions–has an answer to this dilemma, though Dworkin dismisses it rather summarily. The Christian answer is this: the Euthyphro dilemma assumes that God is a being like any other in the universe, subject to the same logical disconnect between fact and value. But God, in Christian understanding, is not like that. Unlike human beings, God is not born into a preexisting universe. He is eternal. As Peter Leithart writes, no gap exists between God and objective reality, including objective moral reality. In the Christian conception, God is objective moral reality.

This is all pretty complicated. But one doesn’t have to follow the entire argument to recognize that theists are unlikely to be persuaded that a belief in God is optional–and that atheists are unlikely to be persuaded that their disagreement with theists is only minor. Dworkin himself recognizes that his irenic project is likely to fail, which gives Religion without God a melancholy tone. He apparently believed it important to try to narrow the conceptual gap between theism and atheism, however, in order to advance a legal project: expanding the legal definition of religion to include non-theistic, ethical convictions.

Here’s the argument. If religion is “deeper” than conventional theism, as Dworkin insists, protection for religious exercise must, in fairness, extend to non-theistic belief systems as well. In fact, protection should extend to any passionately held ethical conviction. This observation isn’t new. In the Draft Act cases decades ago, the Supreme Court indicated that religion could include deeply-held, non-theistic beliefs. But extending “religion” in this way creates a serious practical problem. In our legal system, religion enjoys a specially-protected status. In many instances, government accommodates citizens’ religious beliefs by granting exemptions from otherwise applicable legal requirements. If religion means all deeply-held ethical convictions, how can the state possibly accommodate it? Chaos would result.

Here Dworkin makes his final move. Because of the practical impossibility of accommodating religion, the state should not bother to try. We should abandon “the idea of a special right to religious freedom with its high hurdle of protection,” he writes, in favor of a more general right to “ethical independence.” The payoff? “If we deny a special right to free exercise of religious practice, and rely only on the general right to ethical independence, then religions may be forced to restrict their practices so as to obey rational, nondiscriminatory laws that do not display less than equal concern for them.” Religion, in other words, will take a back seat to progressive politics. A general right of ethical independence, he writes, would restrict public religious displays, unless the displays were genuinely drained of all religious meaning, and would mandate “the liberal position” on same-sex marriage, abortion, and gender equality in marriage.

Dworkin’s definition of religion thus seems tendentious, a way to dilute religion so as to minimize the potential for conflict with the progressive state. This is not surprising. Traditional religion opposes many of the Left’s priorities; for the Left to succeed, it must continue to marginalize traditional religion. And Dworkin’s argument that religion as such does not merit special protection is very much in the air today. Prominent law professors like Brian Leiter and Micah Schwartzman make versions of this argument, for example. In the Hosanna-Tabor case, the Obama Administration maintained that religious freedom, as such, had nothing to do with a church’s decision to fire its minister.

So far, courts appear to be rejecting the religion-isn’t-special argument (though, it must be said, the Court’s 1990 decision in Employment Division v. Smith, the peyote case, gives the argument rather more traction than it should possess). In Hosanna-Tabor, for example, the Supreme Court rejected the Obama Administration’s argument by a vote of 9-0. You never know how future courts will see things, though. Dworkin’s last book suggests that the fight over the special status of religion in American law is only beginning.

Realism and Idealism: On Law’s Limits

Last week, I attended a very interesting conference about which I’ve written here before concerning the “politics” of religious freedom, and the question of what, if anything, might come “after” religious freedom. The conference was particularly instructive for me because most of the participants were not  law professors. They were primarily religious studies scholars, anthropologists, historians of religion, and doctoral students in these disciplines. The presence of doctoral students at various stages in their studies was especially welcome from my point of view, as it gave me an admittedly narrow sense of what some new voices in these fields are investigating and what is of interest to them. Any legal academic who thinks about religious freedom–and, more broadly, the relationship of government and law (domestic and international) to religious communities and traditions around the world–would profit from greater exposure to the concerns and debates of those disciplines that study particular religious phenomena. I am grateful to Winni Sullivan, Beth Shakman Hurd, Saba Mahmood, and Peter Danchin for inviting me.

The interdisciplinary quality of the conference provided a nice view of the convergences and divergences in these scholarly worlds. I did come away from the conference believing that there were more divergences than I had at first perceived. Here are some scattered impressions of the differences in aim, method, and perspective between legal scholars and the scholars at the conference. I also have a little reflection at the end of the post on some recent comments by Benjamin Berger, a fellow member of the law professor tribe whom I was delighted to meet at the conference and who offered some thoughtful and penetrating remarks.

  1. First, a point of sheepishly self-referential comparison: generally when I attend legal academic conferences about law and religion, I find myself arguing for restraint on the part of the liberal state, for the limits of law, and for the importance of highly contextual analysis that does not flatten out conflict in ways that fundamentally misunderstand it. That is because, in the main (and, of course, with many important exceptions), law professors (in my area) subscribe to a fairly muscular liberal political theory of the state. I am therefore cast in the role of cautionary skeptic. By contrast, the scholarly community at the conference was highly critical of the liberal state–critical of it from a distinctive political perspective, to be sure, but critical of it nonetheless. It is probably a contrarian character weakness that had me very much feeling like the liberal state needed a friend. I couldn’t quite muster up the energy to be that friend but I do know more than a few law professors who would have eagerly taken up the mantle.
  2. I was also struck by how prevalent critical methodology seemed to be.  Continue reading

“Prohibition, Religious Freedom, and Human Rights” (Labate & Cavnar, eds.)

bookNext month, Springer will publish Prohibition, Religious Freedom, and Human Rights: Regulating Traditional Drug Use edited by Beatriz Caluby Labate (Center for Economic Research and Education, Mexico) and Clancy Cavnar (John F. Kennedy University). The publisher’s description follows.

This book addresses the use and regulation of traditional drugs such as peyote, ayahuasca, coca leaf, cannabis, khat and Salvia divinorum. The uses of these substances can often be found at the intersection of diverse areas of life, including politics, medicine, shamanism, religion, aesthetics, knowledge transmission, socialization, and celebration. The collection analyzes how some of these psychoactive plants have been progressively incorporated and regulated in developed Western societies by both national legislation and by the United Nations Drug Conventions. It focuses mainly, but not only, on the debates in court cases around the world involving the claim of religious use and the legal definitions of “religion.” It further touches upon issues of human rights and cognitive liberty as they relate to the consumption of drugs. While this collection emphasizes certain uses of psychoactive substances in different cultures and historical periods, it is also useful for thinking about the consumption of drugs in general in contemporary societies. The cultural and informal controls discussed here represent alternatives to the current merely prohibitionist policies, which are linked to the spread of illicit and violent markets. By addressing the disputes involved in the regulation of traditional drug use, this volume reflects on notions such as origin, place, authenticity, and tradition, thereby relating drug policy to broader social science debates.

Movsesian at the European University Institute (June 3)

For CLR Forum readers in the area, I’ll be giving a talk, “Psychic Sophie and the Rise of the Nones,” next week at the European University Institute in Florence. My talk will be sponsored by the Institute’s ReligioWest project. Here’s the abstract:

The most important story in American religion today is the rise of the “Nones,” the category of people who declare no religious affiliation. Approximately one-fifth of American adults are in this category, and their numbers have exploded in the past two decades. Surprisingly, perhaps, the Nones tend to be believers; very few of them say they are atheists or agnostics. They reject not belief but organized religion, and draw on a variety of traditions to create their own, a la carte, spiritualities. In this paper, I explore the rise of the Nones and the tensions it exposes in American law, particularly with regard to the definition of religion. To illustrate, I rely on a recent US appeals court case in which the plaintiff, “Psychic Sophie,” argued that the state had interfered with the exercise of her religion — which she defined, in typical None fashion, as “following her inner flow.”

Details are here. Stop by and say hello!

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.

The Tale of Psychic Sophie, Part II

Psychic Sophie, as I mentioned in Part I, appealed the district court’s unfavorable disposition of her case to the Fourth Circuit U.S. Court of Appeals, which held oral argument on it Tuesday.  Chief Judge Traxler, Judge Wilkinson, and Judge Duncan made up the panel.  Here’s a news report on the argument.  A couple of highlights.

First, in response to an inquiry about whether predicting the future is “inherently deceptive” (and therefore should not receive constitutional protection), counsel for the defendant County said, “Yes, sir, it is.”  To which CJ Traxler responded, “How would you characterize the Book of Revelation?”  Counsel for the plaintiff seems to have argued that predicting the future is not “inherently” deceptive provided that the prognosticator “sincerely believes” the prediction or does not believe that he is being deceptive.  Does the deceptiveness of a prediction of the future depend on the speaker’s subjective belief as to its truthfulness and/or his intent to deceive?  I wouldn’t think so, but I’m not a free speech maven.  But I suppose one might have replied that predictions of the future are not “inherently” deceptive; they are only contingently true (or false) – the contingency being their (dis-)confirmation on the appointed day.  We’re still waiting on Revelation.  On the other hand, Montaigne, in his essay, “On Prognostication,” doesn’t see what all the fuss is about: “[A]lthough there still remain among us certain methods of divination, by the stars, by spirits, by ghosts, by dreams, and otherwise — a notable example of the senseless curiosity of our nature, occupying itself with future matters, as if it had not enough to do in digesting those at hand –…. It is no advantage to know the future; for it is a wretched thing to suffer suspense all to no purpose[.]“

Second, Judge Duncan was interested in the question of whether Psychic Sophie’s business and belief system were “religious” or instead a “way of life.”  But Judge Wilkinson seemed dubious: “If what she’s expressed is a religion, then anything and everything is a religion.”  Kevin Walsh quite rightly suggested to me that skepticism about astrology has a distinguished pedigree dating back at least to St. Augustine.  From Book IV, Chapter 3 of the Confessions:

There was in those days a wise man, very skillful in medicine, and much renowned therein, who had with his own proconsular hand put the Agonistic garland upon my distempered head, not, though, as a physician; for this disease Thou alone healest, who resistest the proud, and givest grace to the humble. But didst Thou fail me even by that old man, or forbear from healing my soul? For when I had become more familiar with him, and hung assiduously and fixedly on his conversation (for though couched in simple language, it was replete with vivacity, life, and earnestness), when he had perceived from my discourse that I was given to books of the horoscope-casters, he, in a kind and fatherly manner, advised me to throw them away, and not vainly bestow the care and labour necessary for useful things upon these vanities; saying that he himself in his earlier years had studied that art with a view to gaining his living by following it as a profession, and that, as he had understood Hippocrates, he would soon have understood this, and yet he had given it up, and followed medicine, for no other reason than that he discovered it to be utterly false, and he, being a man of character, would not gain his living by beguiling people.

Looking forward to the panel’s decision.