Fourth Circuit Clarifies What Constitutes “Religious Exercise” Under RLUIPA
Posted on 9/18/13 by by Evan Seeman and Dwight Merriam
In Moore-King v. County of Chesterfield (4th Cir. 2013), the plaintiff, Patricia Moore-King, is a fortune teller known as “Psychic Sophie.” Psychic Sophie describes herself as “very spiritual in nature,” but she does “not follow particular religions or practices.” Rather, she “pretty much go[es] with [her] inner flow, and that seems to work best.” She draws inspiration from:
“Spirituality, astrology, Reiki, natural healing, meditation, mind-body-soul-spirit-chakra study, metaphysics in general, new age philosophy, psychology, human behavior, quantum physics, ancient history, philosophy, Kabala/Kabbalah, writing, jewelry making, reading, . . . music, music, music!, and creativity in all forms . . . .”
Psychic Sophie professes a strong belief in the “words and teachings of Jesus . . . which [she] believe[s] are incorporated into tarot cards” and also believes in “the New Age movement,” which she describes as “a decentralized Western Spiritual movement that seeks Universal Truth and the attainment of the highest individual potential.”
The Chesterfield County Code of Ordinances (the “Code”) defines a “fortune teller” as:
“any person or establishment engaged in the occupation of occult sciences, including a fortune-teller, palmist, astrologist, numerologist, clairvoyant, craniologist, phrenologist, card reader, spiritual reader, tea leaf reader, prophet, psychic or advisor or who in any other matter claims or pretends to disclose mental faculties of individuals for any form of compensation.”
The Code further requires that (1) anyone who has a place of business in Chesterfield, including fortune tellers, must acquire a business license; (2) a person seeking a business license to practice as a fortune teller must “apply for and obtain a permit from the chief of police, or his designee;” and (3) a fortune teller must pay a license tax of $300.00 and any person operating as an unlicensed fortune teller will be fined at least $50.00, but not more than $500.00 for each offense. The County’s zoning regulations allow “occult sciences,” which includes fortune telling, as a conditional use within certain zoning districts.
In 2009, the County informed Psychic Sophie that she needed a business license to operate as a fortune teller within the County. When Psychic Sophie sought to obtain a business license, she learned that because the County classified her as a fortune teller she would have to pay the $300 fortune teller license tax and a penalty and accrued interest for late payment (totaling $43.75).
Instead of paying the $343.75, Psychic Sophie sued the County, alleging violations of her First Amendment rights to free speech and the free exercise of religion, RLUIPA, and the Equal Protection Clause. The District Court entered summary judgment in favor of the County on all claims.
The Fourth Circuit affirmed the decision of the District Court. It concluded that fortune telling is a “way of life” and not a religion protected by the First Amendment or RLUIPA. To determine whether a set of beliefs constitutes a religion, the Fourth Circuit considered whether those beliefs are (1) sincerely held and (2) religious in nature under the plaintiff’s “scheme of things.” The parties agreed that Psychic Sophie’s beliefs were sincerely held, but disagreed over the second prong, which focuses on whether the beliefs occupy a place in Psychic Sophie’s life “parallel to that filled by the orthodox belief in God.” The Fourth Circuit relied on the Supreme Court’s decision in Wisconsin v. Yoder, 406 U.S. 707 (1981), which distinguished a religion from a way of life: “Yoder teaches that [Psychic Sophie] must offer some organizing principle or authority other than herself that prescribes her religious convictions, as to allow otherwise would threaten ‘the very concept of ordered liberty.’” Psychic Sophie’s disavowal of any particular religion in favor of going with her “inner flow” made clear that her beliefs are a way of life instead of a religion.
Psychic Sophie’s free speech claim also failed under the professional speech doctrine, which permits the government to license and regulate those who provide services to clients in return for compensation without violating the First Amendment. A government’s regulation of a profession does not violate the First Amendment where it constitutes “generally applicable licensing provisions” that affect those who practice the profession. In this case, the County’s licensing scheme for fortune tellers was a generally applicable regulatory regime that did not run afoul of the First Amendment’s freedom of speech protection.
Psychic Sophie’s Equal Protection Clause claim also failed. Because the County’s regulatory regime did not classify Psychic Sophie on the basis of First Amendment rights, rational basis review, not strict scrutiny, is applied. Psychic Sophie could not point to any similarly situated individuals and, even if she could, the Fourth Circuit found that “the County could rationally suppose it proper to place greater regulatory burdens on [Psychic Sophie’s] counseling activities than on the licensed counselors and advisers to whom she seeks to compare herself.”
One may wonder whether Psychic Sophie should have foreseen this result. Fortunately for Psychic Sophie, her website contains a disclaimer: “Sophie does not provide 100% guarantee, as people, perceptions, and decisions can fluctuate, and circumstances out of everyone’s control can happen.” For those still interested in obtaining Psychic Sophie’s services, she charges $35.00 for 15 minutes; $60.00 for 30 minutes; $85.00 for 45 minutes; and $105.00 for 60 minutes. She accepts major credit cards and PayPal. For anyone looking for a gift for that special someone, Psychic Sophie has gift certificates available for purchase.