The Saga of Psychic Sophie (and the Regulating of Divination Services)

Jason Pitzl-Waters —  March 7, 2013 — 28 Comments

Can local governments tell diviners, psychics, and practitioners of other related predictive arts where to go? According to the 4th Circuit Court of Appeals, yes, they can. On February 26th a three-judge panel upheld a lower court ruling that said Sophie Moore-King, aka Sophie King, aka “Psychic Sophie,” is not exempt from zoning codes and taxes aimed at psychics even though she claims to be engaged in religious counseling and immune from these regulations.

A screenshot of Psychic Sophie's website.

A screenshot of Psychic Sophie’s website.

“As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. See Post, supra at 134 n.83 (“The shape and form of constitutional protections extended to professional speech will depend upon the precise constitutional values at stake.”). With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.”

The panel denied that King’s business was materially different from other psychic services currently regulated in Chesterfield County, and thus exempt, though the panel was careful to note that psychic services do have constitutional protections, albeit limited by the “professional speech doctrine.”

“If, as the County contended at oral argument, all predictive speech were inherently deceptive, most religious prophesy, financial prognostication, and medical diagnosis would fall outside the scope of constitutional protection. Cf. Nefedro, 996 A.2d at 858 (noting that lawyers and journalists may also make statements that turn out not to be true). The reality that much professional intercourse depends on predictions about what the future may bring suggests that categorical branding of fortune telling as unworthy of First Amendment protection for that same reason is untenable.”

This seems like very murky territory, Constitutionally speaking, and from my reading justices were aware that their decision could influence local regulations far outside Chesterfield County, Virginia. In short, they are saying that while divination can be protected speech, local governments can, in fact, tell psychics where they can set up shop, and charge special taxes to regulate them. This is unfortunate, because places like Chesterfield use their regulations to create subcultural “red light districts” part of a growing trend to reported on by news organizations like Time Magazine and the BBC.

shutterstock 1114023

Tarot cards.

“But in an increasing number of areas, officials are seeking to crack down on fraud and gain control of a growing industry. As of this month, every fortune-teller in the city of Warren, Michigan must have a licence to operate. To get this they must undergo a police background check, have their fingerprints taken and pay an annual fee of $160. [...] Measures introduced include police interviews, background checks, registration fees, the random inspections of premises and a cap on the number of fortune tellers allowed to operate in a given geographical area.”

So what’s to be done? Well, the 4th Circuit does point to a couple possibilities. First, you may be exempt from regulations if your divination is done as part of a religious ritual and not simply as part of a way of life.

Cognizant that defining the borders between the personal and philosophical on one side, and the religious on the other ”present[s] a most delicate question,” id. at 215, we conclude that Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude. Yoder teaches that Moore-King 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.” Yet Moore-King 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.”

So, for instance, a follower of Kemetic Orthodoxy who provided divination to clients from within that tradition’s belief system may be exempt. Likewise, followers of Vodou or Santeria who are operating within a explicitly religious milieu could also challenge regulations telling them where to set up a church or temple that also provided divination services to the public. For those not invested within an established and recognized religious model, the judges suggest that a national accreditation board that oversees the ethical behavior of its membership could protect a psychic reader from “additional regulatory requirements.”

With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.”

Such a board would, of course, have to then challenge local regulations, arguing that they place unnecessary regulations and limitations on their profession (because they self-regulate). So an uphill climb, to be sure, especially considering the rather independent nature of many psychic practitioners.

For those of us who practice religions that incorporate divination, and sometimes selling divination services to individuals outside our faith traditions, we need to pay attention to decisions like this one. Local town and country governments may well see Chesterfield as a model for how to regulate psychics, and so we need to understand what the limitations, and opportunities to challenge those limitations, are. This is probably the end of “Psychic Sophie’s” legal journey on the matter, but I doubt it will be the last case to challenge zoning and regulatory ordinances regarding predictive services.

For my run-down of the Psychic Sophie saga up to this point, see my post from 2011.

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Jason Pitzl-Waters

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  • Baruch Dreamstalker

    The requirement for an accrediting institution is unconstitutional on its face. The First Amendment guarantees the free exercise of religion; it says noting about accrediting institutions.

    • Faoladh

      It looks to me like the court is recommending accreditation for non-religious fortune telling.

      • Baruch Dreamstalker

        And they are sweeping up readers who do it as part of their religious path but aren’t affiliated with any religious institution. We have seen First Amendment protection applied to minority institutions, but we have yet to bring its full benefits to non-institutional religious individuals.

  • cernowain greenman

    I’m sure a lot of fortune tellers, like Sophie, would want to avoid connecting themselves to any particular religious tradition. For one thing, it may limit your customer base. I appreciate the urge to want to go with one’s “inner flow”, as that’s where many of the American “nones” are who are spiritual but not religious. This is telling readers that they do not have this choice if they want to make a living at it.

    But… if fortune tellers joined Universal Life Church, and then at each of their client sessions opened with an invocation before the reading and and ended with a benediction, would they then qualify as “religious” and be tax-exempt? Or do they have to show that they are “regulated” to a greater degree than the ULC?

    Maybe readers could form a “union” to regulate themselves instead of having city councils do it.

    Personally, I want communities to shut down the scam artists who pose as a fortune teller. The scammers do not help those of us who practice divination as a part of our path. The First Amendment is not about protecting scams.

    And I hate to be the first to say it, but I guess Psychic Sophie didn’t see this coming. Now she has a lot of back taxes to pay and will likely have to close operations. I don’t know if she was a good reader or a fraud, but I am sure her clients will miss her.

  • Charles Cosimano

    The fortune tellers can always apply the Romanian Solution and make it unwise to enforce the regulations.

  • Franklin Evans

    It’s the old paradox rearing its ugly head: where do you draw the line between religious service and commerce? How, exactly, is the practitioner supposed to eat, pay rent and buy clothing?

    I don’t have an answer. I support the state’s mandate to regulate commerce. I also find the entire tax-exemption of religious institutions problematic. Shrug.

    • Baruch Dreamstalker

      I see tax exmption of religious institutions as a form of public support for religion that slides by the Establishment Clause. Since it’s supported by all, it’s incumbent up on government not to arbitrarily exclude some, which is what they are doing and that runs them afoul of the Free Exercise Clause.
      As a Unitarian Universalist and as a Pagan I advocate this stupport of institutions. I file the subject in my headslot labeled “religion.” If you file it under “tax policy” YMMV.

      • Franklin Evans

        Good food for thought, thank you to both of you. Baruch, I have a cognitive bias which I usually use as an excu… um reason to recuse myself for this general topic area: I was a tax professional (pensions) in my first career, and my current one is software for financial systems. I know tax regulations better than most. I’ve had much conversation with inside experts, including a former IRS commissioner. I stopped thinking along the lines of “death and taxes” a long time ago, and see taxes as the child of Eris and Loki: A thin veneer of order over chaos, with a large heaping of mischief for its own sake.

    • Kenneth

      In my mind, tax exemptions of religious groups should be commensurate with the money they actually raise and spend on charitable causes. They should have to publish their financials, at least to the IRS, detailing how much they took in from what sources, and how much of that was given away, basically. How much was dedicated to feeding, clothing, delivering care to people. That should be tax free completely. The costs related to maintaining worship sites, paying ministers and proselytizing, not so much. I don’t have a problem giving them a lighter tax rate, maybe even one that is a fraction of the usual real estate and income taxes. They should pay something for the services in the community in which they’re located.

      I do have a problem with the current model, which assumes that everything a church does is good for society and ought to be fully subsidized by all of us. A lot of mega churches are primarily businesses, not charities. Scientology comes to mind. The Mormon Church is basically a giant tax free holding corporation for real estate, business entities and securities. One study estimated the church gives away something less than 1% of their income in actual money donations (they argue the work they do for others is worth a lot). They, and the RCC and others, also spend a ton of money on political lobbying, which is not supposed to be tax free at all, and on architecture that is really just about prestige, not keeping the rain off of rituals. A lot of nationally known pastors are really just tax-exempt self help speaking and publishing empires.

  • Kenneth

    I’m a bit torn on this one. The regulations in this area are clearly often done for bullshit discriminatory reasons. On the other hand, a case is made that divination is, in the context of most public full-time readers, more of a business or profession than a religion.

    There really is no discernible comprehensive religious belief among diviners. There are more than a few pagans among them, but they hail from every end of the religious spectrum, and many don’t attribute any supernatural or divine association at all with their talents. Divination for hire doesn’t “act” like a religion or church entity of any kind. The clientele is not a congregation or grove or coven which comes together to honor deity or mark seasonal or life passages or to delve into the big issues of existence.

    The money that changes hands is not tithing or donation to support the livelihood of a minister to carry out ritual, pastoral or missionary duties. Divination is a profession selling the consultant’s time, expertise and a technology which sometimes has a metaphysical or spiritual dimension. It’s more like Reiki or Chiropractic medicine. I don’t think it’s unreasonable for them to have to follow basic zoning and some degree of business regulation. That regulation should be content-neutral and rationally related to real public safety concerns and fees should be no more than truly required to oversee basic regulation and background checks etc. I don’t think $160 a year is necessarily out of line.

    What I worry about is that “zoning” will be construed as a way to redline them out of existence, restricting them to red light districts in industrial parks etc. I’m curious to know what the court implied by self-regulation. I wonder if it need be as comprehensive as national board exams or if it would be sufficient to be accredited on the basis of a test and subscription to a code of ethical conduct etc.

    • http://www.facebook.com/profile.php?id=692726455 Shari Lynn Smith

      I agree, it was the zoning issue that got me, plus the extra $300. If a Chiropractor, health food store, etc. has to pay that too. I’m ok with it.

  • http://profiles.google.com/marc.k.mielke Marc Mielke

    Do financial consultancy firms count as non-religious fortune tellers? I don’t really see what they do that’s different from fortune telling except use Powerpoint instead of tarot cards.

    • http://www.facebook.com/kirkesisland Sophia Kirke

      Sometimes they are rather less accurate ;-)

  • http://www.facebook.com/christiana.gaudet Christiana Crane Gaudet

    As a professional reader and an ordained minister myself I think sophie needs to pay her business tax. I pay my business tax as does everyone else in business.If Sophie wants to start a church, that’s great. But a psychic studio is not a church, it’s a business.
    As professional readers we need to be a constructive and productive part of the business community. That is how we earn the respect of the community at large. Claiming special rights and trying to get out of paying the same fees everyone else does hurts all of us.
    If Sophie wants to get a board of directors together, hold regular services and get a tax exemption that would be terrific. Without doing those things she simply casts negativity on the rest of us.

    • http://www.wildhunt.org/blog/ Jason Pitzl-Waters

      How do you feel about zoning ordinances that force readers to keep their businesses in “red light” districts near strip clubs and other related establishments?

      • http://www.facebook.com/christiana.gaudet Christiana Crane Gaudet

        I have a couple of thoughts about categorizing psychic work as “adult entertainment.” First, the only reason this happens is the most visible psychics in any town are the “curse-lifters” who rip people off and often engage in “chakra balancing” via sex. These folks probably do belong with other adult industries.
        When you speak with a zoning officer they will often be able to tell the difference between a well-intentioned psychic worthy of entertaining at the high school prom and the other type. If you try you can usually get a different designation based on your reputation within the community. At least, this has been the case for me.
        In one town I worked in the town council was troubled by a “curse-lifter” who was harrassing and scaring people. They wanted to make psychic work an “adult entertainment” to get her to stop. But then it was brought up in the council meeting that it would also affect me. Consensus of the group was “We can’t do that to Christiana!” And so they didn’t.
        Bottom line, you catch more flies with sugar than with vinegar. If you want to change how we are perceive you should volunteer, join the Chamber of Commerce, work with business leaders and be a force for the positive rather than be perceived as a whack job who doesn’t want to pay her taxes.

  • http://www.facebook.com/profile.php?id=692726455 Shari Lynn Smith

    I don’t think the religious angle worked because she didn’t actually “practice” anything. It was something she carried within herself from what I read. Religion is a practice; as the court saw it. I think someone who practiced their belief might have had a better argument. I don’t follow any religion, however I do practice my belief. Not sure if it would have made a difference or not… I want the whole fortune teller crap gone… what I do isn’t entertainment.

    • http://www.facebook.com/christiana.gaudet Christiana Crane Gaudet

      The “fortune teller crap” won’t go away as long as the majority of professional readers are not legitimate practitioners like you and me but instead curse-lifters who terrify and defraud people and practice prostitution. Until we can draw the distinction between them us and we will be subject to the laws created to appropriately protect people from them. This is not religious discrimation, this is local governments doing what they need to do to try to recoup their own losses and to protect the public in whatever way they can from those who use the psychic arts to commit fraud. In many ways it is our own fault for not making the distinction clear.

  • Baruch Dreamstalker

    I’m concerned that some commenters are giving the authorities the benefit of the doubt. I prefer to look through the law to its motive, and that motive is to shut down readers, period. If we approach this being “reasonable” we’re negotiating with ourselves instead of with the authorities, and doing their work for them.
    The question is, What threat are readers to the authorities? I suggest that it’s an alternative to institutional religious services. The cop who writes the ticket and the judge who decides the case probably don’t have that motivation at the top of their heads. But that threat is the reason the law is there in the first place.
    We fight residual, ingrained Christian privilege all the time; THW chronicles it. We need to see this kind of legal hassle as a second level of Christian privilege with its origins rubbed off. It’s like laws against homosexuality, the residue of a once more powerful church. We should be motivated to expunge that residue.

    • Franklin Evans

      You make an important point, Baruch. I’m mindful of the old “blue” laws and their motivation, and how they were “enforced” on many whose religious motivations were at odds with the idea of a universally observed sabbath.

      My caution to all — change for my two cents accepted — is to remember that these things are akin to forces of nature. Their momentum in not going to be changed in a month, a year or necessarily within a lifetime. Doing the work is our obligation (should we choose to accept it), and perseverance in the face of little (or no) evidence of progress our challenge.

    • http://www.facebook.com/christiana.gaudet Christiana Crane Gaudet

      As a professional reader I have had long talks with, and read for, many elected officials, lawmakers, zoning officers etc. These laws are not “Christian-motivated” in most cases, I believe. They are directed against a particular type of very visible professional reader – the type who call you up in the middle of the night claiming they had a bad dream about you and you need to bring them your heirloom jewelry to prevent a disaster. The type who have sex with you for a price to “balance your chakras.” The type who claim your dead son is doing drugs in heaven and you need to pay them $5,000 to prevent this.
      These type of readers cost the town in which they do business a great deal of money, and cause a great deal of suffering.
      Unless we can make a distinction between more legitimate forms of divinatory practice and these sorts of practitioners, we well-trained, well intentioned, well-respected readers will be lumped into the same category as these heinous shysters.
      Had Sophie developed a more personal relationship with her town officials and helped them understand what she did and did not do she might or might not have had a different outcome. Had she decided to be a part of her business community and paid the nominal fee she might have improved her reputation in the community.
      In the many years and many states I have done business in I have never felt any sense of discrimination once I showed the town what I am about. Rather, I have been invited to read at town functions.

      • Baruch Dreamstalker

        You adapt commendably to this regulatory environment. I want to see that regulatory environment either extirpated or amended to no longer carry an abrahamic meme and accurately address the interests of the public. We are not necessarily at odds.

        • http://www.facebook.com/christiana.gaudet Christiana Crane Gaudet

          Thank you. What is abrahamic about businesses paying a fee to support services in a business district?

          • Baruch Dreamstalker

            The abrahamic meme carries forward the condemnations of false prophets and the commandment to have “no other gods before me.” In other words, to prohibit provision of spiritual services other than from an approved church. Nothing to do with service fees. ;-)

          • http://www.facebook.com/christiana.gaudet Christiana Crane Gaudet

            But any relgious organization can apply for a 5013c. An approved church,temple, grove, coven etc is an administrative thing to make it fair for everyone. It’s not about approving doctrine, it’s about making sure you really are a religious organization and not just avoiding your taxes, as Sophie was trying to do. I don’t see that as Abrahamic, I see it is as practical.

          • Baruch Dreamstalker

            I’ve been involved with getting a 501(c)(3). Not simple.
            I choose not to second-guess Sophie’s business choices. I choose to propose principle-based opposition to these laws. This is my version of Pagan solidarity.

          • http://www.facebook.com/christiana.gaudet Christiana Crane Gaudet

            Understood. What forum will you use to proprose this opposition?

          • Baruch Dreamstalker

            I seem to be on this one.