Archives For 4th Circuit Court of Appeals

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.

On Tuesday the Supreme Court of the United States denied certiorari (judicial review) in the case of Forsyth County, North Carolina v. Joyner, which challenged the local government’s opening prayer policy. In this instance, Forsyth County had constructed an “inclusive” (and thus theoretically constitutionally protected) model where all comers could have a turn, but challengers to the policy noted that the prayers were overwhelmingly Christian, and created a chilling atmosphere towards non-Christian faiths.

On Joyner and Blackmon’s account, the overall atmosphere made them feel distinctly unwelcome and “coerced by [their] government into endorsing a Christian prayer.” Blackmon claimed that she felt compelled to stand and bow her head because of the Chair’s instruction to stand and because of the audience’s response. Joyner offered a similar account, believing that if she had failed to comply, it would have “negatively prejudice[d] consideration of [her] intended petition as a citizen appearing for public comment.” Both characterized the prayer as sectarian, with Blackmon referring to it as including a “one-minute sermon.”

During the period contested in the lawsuit, four-fifths of the prayers referred to “Jesus” in one form or another. The 4th Circuit made very clear that the lack of balance in presented prayers was an important factor in ruling that Forsyth’s policy violated the Establishment Clause.

The Lewis F. Powell, Jr., U.S. Courthouse
The Lewis F. Powell, Jr., U.S. Courthouse, home of the Fourth Circuit Court of Appeals.

“…legislative prayer must strive to be nondenominational so long as that is reasonably possible — itshould send a signal of welcome rather than exclusion. Itshould not reject the tenets of other faiths in favor of just one.Infrequent references to specific deities, standing alone, donot suffice to make out a constitutional case. But legislativeprayers that go further — prayers in a particular venue that repeatedly suggest the government has put its weight behinda particular faith — transgress the boundaries of the Establishment Clause. Faith is as deeply important as it is deeply personal, and the government should not appear to suggestthat some faiths have it wrong and others got it right.”

This skirmish over prayer before government meetings is just the latest in a protracted struggle between the ACLU and the more socially conservative-minded Alliance Defense Fund. While the ACLU is generally skeptical of allegedly inclusive sectarian open prayer models, the Alliance Defense Fund believes them to be constitutionally protected, and part of America’s heritage. Responding to this setback, the ADF said that “the standard for prayer policies in the 4th Circuit will be different from the standard held by the rest of the country.”

“No federal court has ruled that prayers cannot be offered before public meetings. The Supreme Court has simply missed an opportunity to clear up the differing opinions among the various circuits about the content of the prayers. This means that, for the time being, the standard for prayer policies in the 4th Circuit will be different from the standard held by the rest of the country. ADF will continue to litigate in favor of the historical standard until the Supreme Court eventually hears a case that will clear up the confusion.”

The Alliance Defense Fund had a lot invested in this case, and other cases like this, as Forsyth was following their blueprint for protected government sectarian prayer. A blueprint partially constructed around two 4th Circuit cases involving public prayers and modern Pagans: Simpson v. Chesterfield County, the case that helped create the so-called “Wiccan-proof” invocation policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. Despite the fact that towns like Greece, New York and Lancaster, California have won lower-court challenges by including a smattering of minority religions in sectarian prayers (aka the “include a Wiccan gambit”), the law isn’t settled on what, if any, formula for sectarian prayer at a government meeting will pass constitutional muster. It can be folly to read too much into a denied certiorari request, but by letting this decision stand, a decision that invokes both Simpson’s and Wynne’s cases, SCOTUS does leave the idea that balance is necessary in a sectarian prayer model on the table.

Cynthia Simpson and Darla Wynne

Cynthia Simpson and Darla Wynne

Eventually, SCOTUS will have to make a stand on these sectarian prayer policies, just as it recently took a stand on the question of “ministerial exception.” A concept that had been invoked several times in the lower courts, but never in our nation’s highest court. When it does, cases that involve Wiccans and other minority faiths will have a major influence on how that decision is made. In the meantime, Americans United, the ACLU, the Alliance Defense Fund, and several other advocacy groups, will try to build up their positions in the lower courts. No doubt several towns and cities who fall under the jurisdiction of the 4th Circuit Court of Appeals are currently talking with their lawyers over their prayer policies, and whether they need to include more Wiccans.

There’s been quite a bit of discussion this year concerning when sectarian prayers in the United States are permissible in a governmental setting. We’ve had the drama of the “Wiccan-proof” prayer policy in Frederick County, Maryland, and Lancaster, California’s voter-approved sectarian policy, which has withstood one legal challenge so far. Both of these prayer policies are hoping that a stated commitment to broad inclusion will protect them from litigation, but a new ruling in the 4th Circuit Court of Appeals seems to have thrown some doubt on the idea that simply saying you’re inclusive while showcasing predominantly sectarian Christian prayer is acceptable.

The 4th U.S. Circuit Court of Appeals today ruled 2-1 that the Forsyth County Board of Commissioners’ preference for Christian prayers violates the constitutional separation of church and state. [...] The record in the case indicates that 26 of the 33 invocations given from May 29, 2007, until Dec. 15, 2008, contained at least one reference to Jesus, Jesus Christ, Christ, Savior or the Trinity. The appellate court majority said government favoritism in religion is wrong. “Faith is as deeply important as it is deeply personal,” wrote Judge J. Harvey Wilkinson, “and the government should not appear to suggest that some faiths have it wrong and others got it right.”

If this ruling should withstand a Supreme Court challenge, it could change the tactics of groups like the Alliance Defense Fund, a main proponent of the inclusive sectarian model. They know that these sorts of policies favor the religious majority, typically Christianity, and that religious minorities will be drowned out in a sea of invocations to Jesus. A point brought up in the 4th Circuit’s ruling.

…the Board clarified that the prayers were “not intended, and shall not be implemented or construed in any way, to affiliate the Board with, nor express the Board’s preference for, any faith or religious denomination.” Instead, the stated goal of the policy was to “acknowledge and express the Board’s respect for the diversity of religious denominations and faiths represented and practiced among the citizens of Forsyth County.” Despite that language, the prayers repeatedly continued to reference specific tenets of Christianity. These were not isolated occurrences: between May 29, 2007 and December 15, 2008, almost four-fifths of the prayers referred to “Jesus,” “Jesus Christ,” “Christ,” or “Savior.”

What’s the problem with this? It creates a environment of intimidation and unspoken preference for one religious point of view in a place that is supposed to serve and be open to all citizens regardless of their religious preferences.

On Joyner and Blackmon’s account, the overall atmosphere made them feel distinctly unwelcome and “coerced by [their] government into endorsing a Christian prayer.” Blackmon claimed that she felt compelled to stand and bow her head because of the Chair’s instruction to stand and because of the audience’s response. Joyner offered a similar account, believing that if she had failed to comply, it would have “negatively prejudice[d] consideration of [her] intended petition as a citizen appearing for public comment.” Both characterized the prayer as sectarian, with Blackmon referring to it as including a “one-minute sermon.”

This puts into doubt the legal fig-leaf of Lancaster, California’s token inclusion of non-Christians. While the court ruled that the prayer policy of the Forsyth County Board of Commissioners is not necessarily unconstitutional, the overwhelmingly Christian nature of the sectarian prayers helped “create an environment in which the government prefers — or appears to prefer — particular sects or creeds at the expense of others.” If your prayer policy is open, but 4/5’s of your prayers are to Jesus, then you’re creating an atmosphere of preference that (perhaps inadvertently) endorses one type of religiosity over another.

It should also be noted that the 4th Circuit’s decision referenced two cases they previously heard involving Pagans and prayer. Simpson v. Chesterfield County, the case that helped created the so-called “Wiccan-proof” prayer policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. In fact, the Alliance Defense Fund’s “model invocation policy” was designed after these two cases involving Pagans and sectarian prayer earned national attention. So this is a new wrinkle of constitutional needle-threading that proponents of sectarian prayer at government meetings will have to address. The “include a Wiccan” gambit may not work if the rest of the prayers overwhelming endorse Christ. Will those who desperately want to invoke Jesus be able to stomach balancing that out with non-Christian prayers? Expect future challenges to address this very issue. Frederick County, Virginia may now technically be open to polytheist invocations, but they are under the 4th Circuit Court’s jurisdiction, so they better watch their balance.