Chicanery and legerdemain

From McMasters v. State, 207 P. 566, a First Amendment challenge to an Oklahoma law against fortune-telling:

"This action is an outgrowth of an alleged spiritualistic “reading” by a “medium” in a state of trance, purporting to convey a message to one Bessie Jones from the spirit of Minnehaha, a legendary Indian girl as found in Longfellow's poem Hiawatha...

It is earnestly contended by defendant's attorney, in an exhaustive and well-written brief, that this sentence should be set aside on the constitutional ground that her arrest and conviction were unlawful, as an interference with the free exercise of her religious beliefs and practices; that for a number of years she had been a member of the National Spiritualist Association, incorporated under the laws of the state of Oklahoma, and that she was regularly licensed to give spiritual advice to others; that many of the tenets, beliefs and practices of this cult are religious in their nature, including the practice of communicating with departed spirits...

Applying these definitions and authorities to the facts shown by this record, we admit our inability to decide conclusively whether this is a religion, or whether it is a mere philosophy or a system of metaphysical speculation. We are inclined to lean toward the latter view, but we have not been sufficiently advised to decide that point. We do affirm that this record tends to show that, whether religious in its nature or not, it is a system of speculative philosophy, attended with superstitious credulity and in the instant case tinged with hypocrisy. This association prescribes no confession of religious faith; no rules of conduct, directing what its members shall do or refrain from doing, except as before stated. Its principles of philanthropy and its belief in the Golden Rule would apply to the Masonic Order, the Elks, the Rotary Club, or the Boy Scouts, and like organizations, none of which are considered religious organizations...

Even if the purposes of this organization are religious in their nature, it is difficult to see how the practice of giving “readings” or telling fortunes concerning the mating inclinations of men and women could be religious, in any sense. This medium, while in a trance and assuming to speak for Minnehaha, told Bessie Jones, whom she supposed to be a lovelorn girl, that she would soon meet an attractive blond boy, and that later a brunette would supplant him in her affections; that she would soon go on a long journey; that she would eventually marry a man of wealth, etc. All of which sounds very secular to this court. It seems very like a Gypsy fortune teller, or the reading of the palm by some wrinkled old hag, or the interpretations of a crystal gazer in a freak side show. Doubtless it was this species of hypocrisy and legerdemain that this statute was intended to suppress...

One of the most prominent adherents of this faith, A. Conan Doyle (who should not be confused with Thomas H. Doyle, presiding judge of this court) claims that departed souls are enveloped with a kind of external body, capable of being photographed, and that such photographs are in existence; also, that he has the physical writing of a letter written by a spirit friend. Maybe so--but, like Bessie, the stool pigeon, we are somewhat skeptical.

It is not for this court, however, to judge of the merits or demerits of philosophies, cults, or religions; we are expected to decide the law so far as it relates to the concrete facts shown in this record. The legendary Minnehaha never existed in the flesh; hence a continuity of her spirit cannot exist in the spirit world. Unlike Conan Doyle, this medium produced no photograph of the spirit of Minnehaha. Her identity was not established. Some unknown, playful spirit may have deceived the medium, or she may have intended to deceive her client Bessie...

Appeals to the spirit world might avail before the case reaches us, but here we have no jurisdiction over any spirits except those banned by the prohibitory law, such as “Bourbon,” “Mountain Dew,” “Forked Lightning,” and like distillates--like those in the spirit world, some good and some bad...

MATSON, J. (concurring).
While A. Conan Doyle should not be confused “with Thomas H. Doyle, presiding judge of this court,” neither should Bessie, the medium's patron, be confused with E. S. Bessey, Associate Judge of this court and writer of the opinion. I am reliably informed that there is no relationship either by affinity or consanguinity between either of the Doyles or either of the Besseys...

Verily, the spirit of regulation is abroad in the land. For some time most of the states have been regulating the mediums of communication between human beings such as the telephone and telegraph. Now this state proposes to regulate the mediums of communication with the spirit world. The maxim is, sic ad astra. Certainly, further than this we cannot go.

Again, is the statute in question merely regulatory or is it prohibitory? Any exsaloon keeper can explain the difference between regulation and prohibition. Can the state constitutionally prohibit communication with the spirit world, with which, so far as I am advised, we are at peace? If it cannot, can it, under the Fourteenth Amendment, deny the mediums of such communication a reasonable compensation for the services rendered? These queries appear to me to be pertinent in the instant case.

However, assuming that the statute in question is not in contravention of the commerce clause of the federal Constitution, and that the state has power to regulate, I concur, because the medium in question had never filed her schedule of rates with the State Corporation Commission."