Thursday, December 6, 2012
Apropos of Trollope and Ike, here's a neat case -- courtesy of MOJ buddy Kevin Walsh -- that raises all kinds of interesting questions and which was just up for argument at the Fourth Circuit. It concerns one Psychic Sophie, a self-described "spiritual counselor" operating a business in Chesterfield County, Virginia, which provides the following services (for a fee, of course): Tarot card readings, psychic and clairvoyant readings, and answering strangers' personal questions in person, over the phone, and via email.
Psychic Sophie says that she incorporates astrological learning, as well as "psychic/clairvoyant/medium development" and "energy healing," into her work, to "bring forth the inherent wisdom of the God-self within each of her client's souls in order to help them achieve spiritual enlightenment." In her complaint, she stated that she "does not limit her religious beliefs to any one particular form of religion," but rather embraces an assortment of Christian, Buddhist, Hindu, and New Age traditions, with a particular emphasis on the New Age religious movement." But on her website, she said that she "does not follow particular religions or practices." If you check out her site today, this language does not appear, though she does say that she is "very nonjudgmental; accepting of all peoples, religions/spirituality, life-styles, choice, and beliefs."
The trouble got started when Psychic Sophie was informed by the County that she needed to apply for a business license. The County classified Psychic Sophie's work as fortune-telling, a designation as to which Psychic Sophie objected, but which nevertheless required her to pay certain fees. And it turned out that Psychic Sophie was violating some of the County's zoning ordinances: fortune-tellers were excluded from certain commercial zones, including the one in which the business was located. Psychic Sophie pointed out that her office complex included "psychologists, marriage counselors, and a financial service company," and that her business was, after all, not so different. To no avail, however.
So Psychic Sophie brought several claims against the County under the Constitution and the Religious Land Use and Institutionalized Persons Act (RLUIPA), alleging that the zoning and licensing regulations violated her rights to free speech and free exercise of religion among others. Back in 2011, the U.S. District Court for the Eastern District of Virginia dismissed them all. It held that the County was entitled to regulate "inherently deceptive speech," a category which does not receive First Amendment protection:
The undisputed evidence in this case is that Psychic Sophie's business is deceptive. She predicts what the future holds . . . . To the extent she attempts to predict the future or to provide counseling or other services, her conduct is simply a fraud. Many people will accept her act as an amusement, suitable for party entertainment. The gullible, the infirm, and the weak, however, may believe that she actually provides valuable psychological or business insights.
Even if Psychic Sophie's speech was not deceptive, the court held that the County could nevertheless impose reasonable regulations on it as commercial speech, and these zoning regulations were reasonable.
The court dismissed the free exercise and RLUIPA claims because -- at that time -- Psychic Sophie expressly stated on her website that she did not "follow particular religions and practices," even though she was "very spiritual in nature." No religion, no free exercise or RLUIPA protection:
In the sense that religion embodies a search for the unexplained, [Psychic Sophie] could claim similarities to a church minister who helps members of a congregation grapple with the mysteries of our earthly and spiritual existence. But she does not. She expressly disavows that her beliefs are rooted in any religion, seeming to claim more that they are rooted in all religions, as well as a variety of secular pursuits.
According to the court, Psychic Sophie's "panoramic potpourri of spiritual and secular interests does not add up to a religion that can be manifested in practice. This eclectic mix comprises an overall lifestyle, not a belief system parallel to that of God in a traditional religion." The court also noted that the fact that Psychic Sophie charges for her services removes her practices from the category "religion": "If [Psychic Sophie's] practices are indeed rooted in religious belief, it appears that she holds nothing sacred. She rents herself out as an 'entertainment psychic' for parties. Most strikingly, [she] alleges that she has the ability to spiritually connect with people over the internet based on non-real-time communications, such that for $25 per question, she can dispense spiritual advice via email."
"Simply calling one's practices a religion," the court concluded, "does not make those practices part of a religion." Trollope would have agreed. I'm less sure about Ike. Psychic Sophie appealed, and I'll report some fun notes from the argument at the Fourth Circuit in my next post.