We have made some revisions to the Open Letter on Phoenix and Sedona based on input from several of you. While the tone has been softened, the substance remains fundamentally unchanged, and we believe the softening strengthens the letter. We hope that some of you who were undecided will now feel comfortable signing and that those of you who would prefer a somewhat tougher tone will understand the importance of making the message more palatable and non-judgmental. We’re very grateful for the input we’ve received thus far.
For those who wanted to be sure that the number of signers would be large enough to make a difference, we have 15 people committed to signing, many of them very well-respected in their fields. The page will include an invitation for others to join.
The arrests were made after a six-month investigation, and yesterday it was announced that the police report is over 200 pages long. There also seem to be tax issues that might give rise to further investigations. Thus, there may well be more damaging revelations to come. If so, there will almost certainly be far more bad publicity, which makes taking this stand now all the more important.
Since this letter is going to so many of you and we want to go public in the very near future, please limit your suggestions to things that you think are highly important and/or that might influence your willingness to sign. Of course, copyedits are always welcome too.
If you have expressed interest or general support but have not specifically stated that you want to be listed, please let us know if you do. Also please provide us with the details of how you’d like to be listed – name, credentials, publications, website, etc.
Thank you all for your insights and support.
Mark Michaels (Swami Umeshanand Saraswati) and Patricia Johnson (Devi Veenanand)
We, the undersigned, have followed the arrests at and subsequent discussions surrounding the Phoenix and Sedona Goddess Temples with concern. We come from a variety of different backgrounds and perspectives, but notwithstanding our diversity, we feel compelled to address the situation in Arizona with one voice, especially when calls for “unity” are stifling informed dissent and creating a distorted public perception of Tantra, sex coaching, sex work, sexual surrogacy, some forms of sex education, and the ways in which they may or may not intersect.
We recognize that many rivers lead to one ocean and respectfully offer our views here for the purpose of deepening the dialogue and exchange of ideas. We invite all concerned to investigate their assumptions, question and double check their facts, think clearly, and refrain from emotionalism.
1) We regret that law enforcement deemed it necessary to investigate and make arrests in this case and have sympathy for those who have been charged, especially those whose beliefs may be sincere but who may be misguided with regard to the legality of their actions.
2) We support at minimum the decriminalization of sex work
3) Tantra is a diverse tradition. It takes many forms, including but not limited to a modern version known as Neo-Tantra. Some versions of Tantric and Neo-Tantric practice include sexual ritual as a sacrament. At the same time, many Tantric practitioners are celibate. To limit the definition of Tantra to sacred sexuality or to treat sex work, sacred or otherwise, as central to Tantric practice is both ahistorical and potentially offensive and damaging to the many practitioners who do not engage in these activities, as well as to many of those who do include ritual sex among an array of other practices.
4) As far as we are aware the exchange sex for money is not mandated anywhere in traditional Tantric teachings, for any purpose, nor is exchanging sex for money central to the practices of most Neo-Tantric practitioners.
5) We do not support using a religious freedom argument in the Goddess Temple cases because:
a) It creates arbitrary divisions between sex workers who self-identify as “spiritual” and those who do not.
b) If successful, t would enable rather than discourage related crimes like human trafficking, forced servitude, and child prostitution because it would create an exemption that could easily be used by traffickers as a cover, since religious freedom tends to limit the degree to which government scrutinizes religious organizations.
c) The legal precedents are clear. For religious practices to be constitutionally protected, they have to be central to the religion. For example: http://openjurist.org/46/f3d/948/bryant-v-h-gomez-d We are aware of no living religious or spiritual tradition in which sex for money is central. While it is true that the devadasi tradition persists to this day in South Asia, Human Rights Watch describes it as “sexual slavery.” Human rights implications aside, the practice is in decline and is in no way central either to Hinduism or Tantra.
d) American law is also clear that if money changes hands, and there is a quid pro quo, the mere assertion that a payment is a donation does not make it so. http://supreme.justia.com/us/490/680/case.html
6) While we understand and sympathize with the sense of outrage and injustice that many have expressed and admire the rapidity with which people have mobilized, we believe that some have acted and spoken without adequate information. We are also troubled by some of the aggressive fund-raising in support of a defense that we see as legally weak and potentially damaging to the sex-positive, sacred sexuality, and sex-worker movements. If you want to advance the causes of sexual freedom and/or sex worker rights, there are many established and credible organizations that could use your support. We encourage all readers to do their due diligence, seek second and third opinions from people with no stake in this particular case, and choose wisely.
The defendants in the Phoenix and Sedona cases and their supporters no matter how well intentioned are doing a disservice to our communities by raising religious freedom as a defense. Given the legal precedents, including but not limited to those cited above, this is not the argument with which to lead if we are seeking to build a more sex positive world for all people, whether or not they think of themselves as religious or spiritual. We cannot allow our work or our efforts to be defined by the actions of a misinformed or misguided minority, even if we consider them to be our friends and peers and no matter how pure their intent.
UPDATE: OCT 11 2011
Upon further review of the case law, I have determined that Paragraph 5(c) of the Open Letter is not accurate. Bryant v. Gomez, the case cited, is a 9th Circuit case, and the centrality standard has since been rejected by that circuit in Shakur v. Schirro.
As the signer of the open letter with a legal background and the person who researched these issues, I take full responsibility for the mistake. I should have been more careful; however, my error does not affect the overall thrust of the letter, and the consensus view of the signers has not changed. The signers still believe that pursuing a religious freedom argument in this case is likely to do more harm than good and stand by the other statements.
In State v. Hardesty (2007), which rejected a freedom of religion claim for the use of marijuana, the Arizona Supreme Court wrote:
A party who raises a religious exercise claim or defense under FERA must establish three elements: (1) that an action or refusal to act is motivated by a religious belief, (2) that the religious belief is sincerely held, and (3) that the governmental action substantially burdens the exercise of religious beliefs.
FERA is an Arizona statute that is more generous with regard to freedom of religion than the constitutional standard established by the Supreme Court. There is a similar federal statute that applies to federal laws but not to the states.
In the Hardesty case, the state conceded all three of the above elements. Based on their public statements, it does not appear that the prosecutors in the Goddess Temple cases will do the same, and while “mandated” and “central” may not be explicitly addressed, they may still arise implicitly in the context of whether the statutes being challenged “substantially burden the exercise of religious beliefs.” If the defendants were to win on the above questions (and it is on them to prove all three), another very high hurdle remains. The explanation of the “compelling state interest”-“least restrictive means” test in the Hardesty case provides a good preview of how an Arizona court would likely handle a case involving sex work. I remain convinced that, even if the criteria listed above are met, the likelihood of success under the compelling state interest-least restrictive means test is vanishingly small.