A U.S. District Court in Virginia has upheld county ordinances in Virginia that required psychics and fortune tellers to get licenses and submit to regulation. The case was brought by Patricia Moore-King against Chesterfield County, VA. The ruling describes what she does:

Moore-King conducts business under the trade name “Psychic Sophie.” She provides various personal services, the legitimacy of which cannot be established by objective means. These include Tarot card readings, psychic and clairvoyant readings, and answering strangers’ personal questions in person, over the phone, and via email. Psychic Sophie charges fees for all her services. For personal or telephonic readings, she charges by the quarter hour; for email questions, she charges by the question. Customers may make appointments to meet Moore-King by providing their email addresses, phone numbers, and “PayPal” information. She is available to entertain at parties for a fee of $250.00 for the first two hours, and $50 per hour thereafter… In her work, Psychic Sophie incorporates lessons learned from the fields of astrology, “psychic/clairvoyant/medium development,” and energy healing. She describes her work as “spiritual counseling,” asserting that she “brings forth the inherent wisdom of the God-self within each of her client’s souls in order to help them achieve spiritual enlightenment.” According to her Complaint, Moore-King “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. On her website, however, Psychic Sophie asserts that she “does not follow particular religions or practices.” Moore-King practices Reiki, which involves “touching with the hands” that supposedly “produces beneficial effects by strengthening and normalizing certain vital energy fields held to exist within the body.”

In other words, she’s a fraud peddling the irretrievably stupid to the moneyed and credulous. Anyway, the county told her that she had to purchase a business license in order to operate and classified her as a fortune teller, which she disputes. She apparently called the county “explaining why she does not consider herself a fortune teller, to no avail.” Well yes, that’s because you are, in fact, a fortune teller. Saying you aren’t doesn’t alter reality.

She challenged those regulations as a violation of the Free Speech clause, the Free Exercise clause and the Equal Protection clause, as well as the Religious Land Use and Institutionalized Persons Act (RLUIPA). The court granted summary judgment to the county on all of them and upheld the legality of the regulations. I’m not sure the court is right on constitutional grounds and I think such regulations may be a bad idea on pragmatic grounds as well.

On the free speech issue, the court simply rules that all business regulations affect speech in some way but that is not a sufficient basis for establishing a First Amendment claim. But the second part of the court’s ruling on the free speech issue is where it gets interesting:

One type of reasonable regulation is that the government can absolutely prohibit speech that is inherently deceptive. The weight of authority holds that fortune telling is inherently deceptive. (Ed’s note: Several cases are cited here, but I’ve omitted them) The undisputed evidence in this case is that Psychic Sophie’s business is deceptive. She predicts what the future holds. For instance, the plaintiff answers questions about business prospects. One person asked her, “Will my business turn around in 2010? I’ve already written off 2009.” She responded: “I wouldn’t write off 2009 just yet. A fairly large corporation located north of Virginia will be making contact. . . . This offer will be worth about 3-4K to you, and although you’ll have misgivings at first, you will accept.” The plaintiff’s claim to such future knowledge is quintessential deception. Her counseling ventures are no less deceptive. For instance, she provides personal counseling based on Tarot cards. She also gives psychic advice, in person or by email. Her practices are based in part on her knowledge of astrology. If these facts are not enough to discount the validity of her practices, one need only consider additionally that, for a fee, she will come to parties and entertain guest with her psychic services. 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. Deceptive speech enjoys no First Amendment protection. Cent. Hudson Gas & Elec. v. Pub. Serv. Comm’n, 447 U.S. 557, 563 (1980). “The government may ban forms of communication more likely to deceive the public than to inform it. . . .” Id. at 563 (citations omitted). Since the County can prohibit fortune telling altogether as deceptive speech, clearly the County may regulate fortune telling through zoning and licensure rules without causing any First Amendment concerns.

But this is where such regulation may just be a bad idea. The court is right, of course, to conclude that what this woman does is inherently deceptive. But it seems to me that there are only two logical ways to handle that fact:

A. Ban it entirely.

B. Allow it entirely.

Regulating it by requiring background checks and licenses only serves to legitimize such deception. After all, if a “psychic” passes the background check and is licensed to open a fortune telling business then it must be on the up and up, right? Wrong. But that is exactly the message sent by such regulations. And by charging a substantial fee to receive such a licence, the government is actually making money from deliberately deceptive practices.

And another serious problem develops when the court addresses the free exercise claims, which it rejects because it concludes that what Moore-King does is not religious in nature.

According to the Supreme Court, “[o]nly beliefs rooted in religion are protected by the Free Exercise Clause, which by its terms, gives special protection to the exercise of religion.” For purposes of the free exercise clause, in determining what comprises a religious exercise, courts are to consider whether the faith “‘occupies a place in the lives of its members ‘parallel to that filled by the orthodox belief in God’ in religions more widely accepted in the United States.'” The plaintiff’s religious beliefs “‘need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection[,]’ . . . [n]or ‘must religious observations be uniform to merit First Amendment protection.” Id. (citations and quotation marks omitted). “In evaluating whether a belief is religious in nature, the courts “must take care [to] avoid any predisposition toward conventional religions so that unfamiliar faiths are not branded mere secular beliefs.” For example, in Dettmer v. Landon, the Fourth Circuit held that the Church of Wicca occupies such a “place in the lives of its members parallel to that of more conventional religions,” and held that the doctrine must be considered a religion for purposes for the free exercise clause. In affirming this Court’s decision, the Fourth Circuit recited many of the findings of this Court: the “fairly complex set of doctrines relating to the spiritual aspect of [the Wiccan’s] lives,” “the contents of many of [the Wiccan] doctrines parallel those of more conventional religions,” the Wiccan Church’s doctrines that “teach ceremonies parallel to those of recognized religions.” This Court and the Fourth Circuit rejected the government’s contention that the Church of Wicca is not a religion because “it is a conglomeration of various aspects of the occult, such as faith healing, self-hypnosis, tarot card reading, and spell casting.” In contrast, in Harrison v. Watts, this Court rejected the plaintiff’s Free Exercise claim because he had pulled an about face in describing his affinity group, the “Five Percenters.” In the initial complaint, the plaintiff described the group’s doctrine as a “way of life,” which the Court found was not “religious” for Free Exercise purposes. On a reconsideration motion, the plaintiff phrased it as the “practice and devotion to Allah’s teachings.” In finding that the plaintiff was not engaged in the exercise of religion, the Court noted that the plaintiff had repeatedly claimed his practice was not a religion. In this case, Psychic Sophie states on her website: “I am very spiritual in nature, yet I do not follow particular religions or practices, and ‘organized’ anythings are not for me. I pretty much go with my own inner flow, and that seems to work best.” (emphasis added). Although that statement leaves room for interpretation, one thing seems clear —Moore-King follows no religion. It is not as if she claims the mantle of Buddhism, but engages in practices in the name of Buddhism that no other Buddhist believes central to the religion. It is as if she is Lutheran one day, Buddhist the next, and an ad hoc spiritualist the day following—only, on any given day, she may be all three at once, or none at all. In the sense that religion embodies a search for the unexplained, Moore-King 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. For example, her use of Tarot cards could qualify as religious exercise if she were a practicing Wiccan. But Moore-King does not, however, claim to read Tarot cards as part of the exercise of the Wiccan religion or any other religion. Indeed, the sheer number and variety of interests that Moore-King invokes cast serious doubts upon her claim to religion: 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 (Manly P. Hall, Madame Helena P. Blavatsky, Alice Bailey, and James Hillman are of special appeal), music, music, music!, and creativity in all forms are passions and interests of mine. Such a panoramic potpourri of spiritual and secular interests does not appear to 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.

But this kind of reasoning strikes me as very dangerous. The truth is that while Moore-King claims not to be part of any particular religion, what she is engaged in is still inherently religious. And when the government gets into deciding which kinds of religion get First Amendment protection and which kinds don’t, it is nearly impossible to draw a coherent and consistent line.

There just isn’t any logical distinction between what she does and what mainstream religions do. Without deciding that one is more accurate or valid than another — which the government cannot do — how can we distinguish between reading Tarot cards to predict the future and praying to God for a “word of knowledge” or claiming that God has given you a prophecy, as many Christian denominations do? We can’t. Traditional religions are just as inherently deceptive as psychic readings are.

So why, then, should one be subject to regulation, taxation and even outright bans while the other is not allowed by law but is even granted explicit legal exemptions from the very laws that the court is upholding in this case? The distinction is a legal fiction that invariably favors the larger and more powerful religious groups from those without such power and influence.

But should we end religious exemptions? The answer may seem easy when we’re talking about a pharmacist refusing to dispense birth control. But how about a Jehovah’s Witness who is fired for refusing to raise the flags at his place of work? There is such a case in the courts right now. What about students who object to saying the Pledge of Allegiance because or swearing an oath in court because it violates their religion? Is there a neutral way to allow one set of exemptions based on neutral criteria without also leading to bad results? Or do we simply have to have one basic principle and accept that it protects things we don’t like as well as the things we do?

This is not an easy issue and I suggest no easy answer. The First Amendment rightly protects the free exercise of religion from government intrusion. And once we begin drawing limits on that right, we are inevitably going to have to walk some fine lines. The law should protect those from being harmed against their will by the actions of others regardless of whether those actions are justified or commanded by one’s religious views. And yes, this includes children who are denied medical care because their parents opt to pray instead of taking the kid to the doctor.

But does it include protecting people against being taken advantage of by religious hucksters, whether it’s Psychic Sophie or Pat Robertson? Both are frauds who separate the credulous from their money. But the government has no means of reaching such a conclusion without indicting all religious exercise and that would essentially negate the free exercise of religion entirely, something even the most hardened atheist should not support.

And in the end, people do have the right to believe stupid things and act accordingly. If someone wants to waste their money, either by sending it to a faith healer, calling a “psychic” hotline or getting their palms read at a county fair, I support their right to do so. What I favor is not legal regulation but an aggressive campaign to expose these frauds for what they are.