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.

Tags: 4th Circuit Decisions, U.S. Court of Appeals
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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

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Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.

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