Tuesday, February 26, 2013
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 of Yoder). 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.