Virginia Court Says Divination Not A Religious Practice

In the beginning of 2010 I reported on the case of Patricia Moore-King (aka “Psychic Sophie”), a psychic practitioner/spiritual counselor who challenged Chesterfield County’s onerous zoning regulations designed to discourage tarot readers, psychics, astrologers, and other practitioners of “occult sciences” from opening up a shop. King maintains that she wasn’t a “fortune teller” but engaged in a form of religious counseling, and therefore the regulations didn’t apply to her.

A screenshot of Psychic Sophie's website.

A screenshot of Psychic Sophie's website.

The County of Chesterfield’s laws classify Ms. King’s activities as “the occupation of occult sciences” and therefore defines her as a “fortune-teller” (she does not identify herself as such), which subjects her to numerous restrictions including a background investigation, a criminal record check, review by the chief of police and other requirements related to her “character” and “demeanor” that are not required of any other religious or commercial enterprise within the County. These restrictions also do not apply to other religious or secular counselors, or even to persons “pretending to act” as fortune-tellers.

The County’s zoning code also restricts Ms. King’s activities to a zoning district that includes adult businesses, pawnbrokers, material reclamation yards, and vehicle impoundment lots, and forbids her from the zoning district where her current office is located and where other counselors are permitted. Ms. King is further subject to an additional occupation tax not required of other counselors. The Complaint states that “the negative treatment of ‘fortune-tellers’ is motivated by official hostility to individuals based on the viewpoint and content of their speech, and their spiritual beliefs.”

In July of 2010 U.S. District Judge Robert E. Payne threw the case back to the local level, saying King failed to press for a final resolution before heading to court. Now Religion Clause reports that a Federal District Court has upheld Chesterfield’s regulations, and rejected claims that she was engaged in  religious practices.

In Moore-King v. County of Chesterfield Virginia, 2011 U.S. Dist. LEXIS 112205 (ED VA, Sept. 30, 2011), a Virginia federal district court rejected  constitutional challenges to Chesterfield County, Virginia’s regulation of the business of fortune telling. Patricia Moore-King, a “spiritual counselor” who operated under the name of “Psychic Sophie” claimed that the county’s zoning, business license tax and fortune teller permit ordinances violate her free exercise of religion, free speech and equal protection rights. The court held that plaintiff’s predictions and counseling services are inherently deceptive commercial speech, and that the regulation of them is reasonably drawn. The court rejected plaintiff’s free exercise and RLUIPA claims, finding that she is not engaged in religious practices. It also rejected her equal protection claims.

I don’t have access to the full decision, but these seem like very bold rulings that swim against the prevailing trend in cases regarding psychic services. In 2010 the Maryland Court of Appeals ruled that fortune telling and related services are protected speech, and 2008 a federal judge tossed out a fortune telling ban in Livingston Parish, Louisiana.  No doubt the judge felt he had more judicial leeway since this wasn’t a total ban, but how did he determine that King’s services are “inherently deceptive”? That she isn’t engaged in a religious practice?

In 2010 both Time Magazine and the BBC looked at a growing trend of stricter regulations against psychics being enforced by local governments. The creation of these subcultural “red light districts” are often harder to challenge than a total ban, though they often have the same effect. In my interview with author and renowned tarot expert Mary K. Greer, she spoke about her business (reading cards) should be treated like any other business, and not singled out for punitive regulations.

“No. I don’t believe in specific laws and regulations for fortune tellers that go beyond the standard business laws of any community. It has been found that laws prohibiting fraud cover most cases of abuse perfectly adequately and far better than regulations that discriminate unfairly against this particular profession, especially when they assume criminal behavior where none has been shown by the individual. It has been proved over and over again that discriminatory regulations are created by special interest groups and that they are unfair and almost always unconstitutional.

I’ve always been proud of being part of what I call an “outlaw profession,” partly because it operates outside of the laws, understanding and expectations of regulated society and crosses over the boundaries that tend to distinguish professions, being in-part, entertainment, spiritual guidance, noetic and folk therapeutics, and more. By definition, I provide a service that is not covered adequately by the more traditional and accepted professions. Clients are looking for something extra-ordinary and they get something extra-ordinary. I have the freedom to self-design and describe what I do—which also brings with it the responsibility to explain this as clearly as possible to my clients. I am also responsible to establish my own ethical guidelines and to know and operate my business within the laws and regulations of any area in which I work. While the public is taking a chance on what they are getting, “chance” is, by definition (fate-fortune-chance), part of what they are seeking. However, most of what I’ve said in this paragraph has no bearing on the legal issue, which is a matter of free-speech, occasionally freedom of religion, and is a business service that should be treated like other businesses. If fees and fingerprinting are standard for all businesses then fortune telling should be included.”

I have to say that I find it hard to not draw a line between these regulation and that fact that this is the same Chesterfield County that invented the so-called “Wiccan-proof” invocation model. In any event, I can’t imagine this ruling remaining unchallenged (especially if some courts see fortune telling as protected speech), though I suppose that will depend on King’s law firm. In the meantime, at least in Chesterfield County, divination isn’t considered a religious practice, and their zoning regulations stand.

About Jason Pitzl-Waters
  • Kris

    Somehow Idoubt they are giving the same scrutiny to a baptist pastor (just an example) who tells his congregation if they drop in a $20 “love offering” it will be returned to them full fold

  • Charles Cosimano

    Well, a higher court will probably hand that judge his hat.

  • http://www.magickal-media.com Alice C. “A.C.” Fisher Aldag

    A suggestion is a counter suit, naming the weather predictors in local mainstream media and those who predict the stock market, as those engaged in fortune telling. Sound far-fetched? I threatened this and won…

    • mk

      nice

      • http://heathenfaith.blogspot.com Norse Alchemist

        Actually, where I’m from there is the running joke that if the weather man tells you something, you got a 50% chance he’s wrong. Thor drinks the moonshine here, and gets all loopy and crazy.

        When I read runes, I have a much higher accuracy rate. lol.

  • http://www.facebook.com/profile.php?id=589403517 Alley Valkyrie

    This is an interesting one. I read the full decision and agree with part of the judge’s ruling, although his bias towards fortune-telling is obvious from his tone and language. My thoughts:

    She lost the Free Exercise/RLUIPA claim for not claiming a specific religion. The Louisiana federal case was won because the plaintiff/appellant was a Wiccan and his fortune-telling activity was directly connected to his religion. A mish-mash of spiritual beliefs will not sustain a RLUIPA claim. If the plaintiff in this case had asserted a specific religious belief connected to fortune-telling, she would have had a much stronger claim.

    In terms of the free speech claim, what distinguishes this case from the Maryland state court case that held that fortune-telling is protected speech, is that in the Maryland case (Nefedro v. Montgomery County), the judge made a determination that fortune-telling was not inherently fraudulent and entitled to First Amendment protection, and in this case the judge made a determination that fortune-telling was fraudulent and therefore not entitled to such protections. This finding contradicts other federal cases which have held that fortune-telling is not automatically fraudulent and is deserving of constitutional protection, although none of those cases are binding precedent on this one.

    This is the first case that I know of where the determination of fraud in regards to fortune-telling was made in connection to a free speech claim, although I’d have to look into it further to be sure. There are both state and federal cases where fortune-telling has been found to be fraudulent, but those cases were unrelated to First Amendment claims.

    I don’t think that her RLUIPA claim is worth appealing, but I do hope she appeals the findings that fortune-telling is fraudulent and the determination that the town’s ordinance is a reasonable time, place, and manner restriction. The finding that the ordinance was reasonable was directly based on the finding of fraud, and a reversal on the speech claim would affect the finding regarding the ordinance.

    • http://www.myspace.com/kadynastar Khryseis_Astra

      “She lost the Free Exercise/RLUIPA claim for not claiming a specific religion.”

      But why should she have to? The First Amendment doesn’t define what constitutes religion, thank the gods. One can have a variety of religious & spiritual beliefs without having to belong to a specific path or religious label. If she says it’s a part of her religious beliefs, it is, and allowing judges to decide what’s “good enough” to count as a religion/belief is treading on dangerous ground.

      I also find it disturbing that this case automatically equates divination with fraud. While there may be a lot of scam artists out there, there’s no reason to single out the entire profession when existing fraud laws are more than adequate to handle the situation. IMO such ordinances go against the whole idea of “innocent until proven guilty.” They’re assuming guilt right from the get-go and penalizing practitioners before they’ve even done anything wrong.

      • http://www.facebook.com/profile.php?id=589403517 Alley Valkyrie

        “But why should she have to?”

        She has to because she’s claiming that her rights were violated under a federal statute that grants special protection to those engaged in religious practices, in this case the Religious Land Use and Institutionalized Persons Act. It’s illogical to claim that you’re protected under a law designed to protect religion from governmental intrusion if you’re also claiming that what you practice is not a religion.

        The First Amendment doesn’t define what constitutes religion, but decades worth of case law has produced lots of language regarding what is considered a religious practice for the purposes of constitutional protection. One can believe whatever they without having to belong to a specific path or religious label… but in terms of a free exercise or RLUIPA claim, you won’t get anywhere if your beliefs by your own admission are not religious in nature.

        • http://en-pi.facebook.com/steward John Deltuvia

          An historical footnote about making it clear that this is a religious practice: There was a criminal bill introduced in 1778 by a Virginian who was well known for his beliefs in the rights of freedom of religion. Part of the bill read:

          “All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes.”

          Note that it says “*arts* of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies”. It is clear that the author classified witchcraft not as a religion, and prophecy as not a religious practice, but rather as consumer frauds.

          So it’s easy to see that in the state of Virginia, without specifically tying this practice to a New Religious Movement (NRM), the courts would follow the example and opinion of the founder of the University of Virginia, Thomas Jefferson.

          (Source of quote: http://bit.ly/nFf3Dw )

  • Seejane

    ‘Tis a shame that Chesterfield has not continued in its tolerance: …a group of citizens of Chesterfield County, Va., to the state assembly, Nov. 14, 1785: “Let Jews, Mehometans and Christians of every denomination enjoy religious liberty…thrust them not out now by establishing the Christian religion lest thereby we become our own enemys and weaken this infant state. It is mens labour in our Manufactories, their services by sea and land that aggrandize our Country and not their creeds. Chain your citizens to the state by their Interest. Let Jews, Mehometans, and Christians of every denomination find their advantage in living under your laws.” (http://www.loc.gov/loc/lcib/0205/tolerance.html)

    • http://en-pi.facebook.com/steward John Deltuvia

      But that’s not really much tolerance at all: religious scholars of the period, as well as well-educated lawmakers, were quite aware that they were only applying liberty insofar as it pertained to the worship of the God of Abraham: YHVH (for Jews and Christians), or Allah (for “Mehometans”)… it’s all essentially worship of one idea of one male deity. There’s nothing in there that tolerates any other worship, or for that matter lack of worship.

      • Seejane

        True, there is another quote from Thomas Jefferson (I can’t get away from him….) regarding the same ratification issues: “the Jew and the Gentile, the Christian and Mohammedan, the Hindoo and Infidel of every denomination.”

  • Rhalynn

    I’m so ashamed to see the level of intolerance of my county on display on a national level:(

  • Ben

    As a reconstructionist, I agree with the court’s discision, as divination alone is NOT a religion, rather part of some religions.

    • Danacorby

      A Ben — No, divination isn’t a religion on its own but to say that a religion that includes divination is legit but that the divination part of it is fraudulent is like saying all of Catholicism is legal except the rite of transubstantiation. A practice that is inherent to a religion has to be given the same protection as the rest of the religion.

      Which brings us willy-nilly to the issue of the religious use of entheogens and my hearty objection to the SCOTUS decision of 30 or so years ago against the right of Native Americans to use peyote: the decision was that while it was legal to _believe in_ the use of peyote, to actually _use_ it was illegal.

      The current fad for making the legitimate use of a practice illegal because the potential exists for illegitimate use is beyond stupid. Let’s outlaw air and water while we’re at it.

      • Ben

        I personally think that the legalization of many hallucinogenic drugs for traditional shamanic practices of any indigenous religion (not new age un-historical religions) should be allowed and is totally warranted, I just believe that new age faiths shouldn’t have any rights as they have no history to base their facts on, they’re just theology and philosophical thought.

  • Danacorby

    If divination isn’t a religious practice, what does that make all those devout Christians who do bibliomancy (though few of them have large enough vocabularies to call it that) to divine the will of God for them?


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