The Tale of Psychic Sophie: Denouement

Back in December, I wrote a couple of posts about “Psychic Sophie,” —  Part I and Part II — the “spiritual counselor” who was classified as a “fortune-teller” by Chesterfield County and in consequence was deemed to be violating various County zoning ordinances and a licensing requirement.  Psychic Sophie’s free speech, free exercise, and RLUIPA complaint was dismissed by the US District Court for the Eastern District of Virginia, and she appealed to the Fourth Circuit.

Things did not sound very good for Psychic Sophie at oral argument, and, as Kevin Walsh reports, the Fourth Circuit affirmed the grant of summary judgment for the County today.  From Kevin’s post about the opinion:

With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”

From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”

The problem of the legal definition of religion only occasionally vexes courts, and the Supreme Court has never said anything definitive about it for constitutional purposes (Yoder may offer “guidance,” as the court says, but its guidance is not definitive — and I don’t mean that in the least as a criticism ofYoder).  Judge Arlin Adams’s Third Circuit concurring opinion in Malnak v. Yogi many years ago is certainly worth reading as a classic period opinion of the late 1970s on the subject, but it seems to me that the Fourth Circuit’s approach is quite different (different times).

One final note.  Writing for the panel here, Judge Duncan said this: “Yoder teaches that [Psychic Sophie] must offer some organizing principle or authority other than herself that prescribes her religious convinctions, as to allow otherwise would threaten ‘the very concept of ordered liberty.’  Yet [she] 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.'”  But, taking care not to “belittle” Psychic Sophie’s beliefs, the court seems to hold here that a self-referential religion of one will not receive protection under the Constitution or RLUIPA.

Perhaps the “Eisenhower principle” has its limits.

The Tale of Psychic Sophie, Part II

Psychic Sophie, as I mentioned in Part I, appealed the district court’s unfavorable disposition of her case to the Fourth Circuit U.S. Court of Appeals, which held oral argument on it Tuesday.  Chief Judge Traxler, Judge Wilkinson, and Judge Duncan made up the panel.  Here’s a news report on the argument.  A couple of highlights.

First, in response to an inquiry about whether predicting the future is “inherently deceptive” (and therefore should not receive constitutional protection), counsel for the defendant County said, “Yes, sir, it is.”  To which CJ Traxler responded, “How would you characterize the Book of Revelation?”  Counsel for the plaintiff seems to have argued that predicting the future is not “inherently” deceptive provided that the prognosticator “sincerely believes” the prediction or does not believe that he is being deceptive.  Does the deceptiveness of a prediction of the future depend on the speaker’s subjective belief as to its truthfulness and/or his intent to deceive?  I wouldn’t think so, but I’m not a free speech maven.  But I suppose one might have replied that predictions of the future are not “inherently” deceptive; they are only contingently true (or false) — the contingency being their (dis-)confirmation on the appointed day.  We’re still waiting on Revelation.  On the other hand, Montaigne, in his essay, “On Prognostication,” doesn’t see what all the fuss is about: “[A]lthough there still remain among us certain methods of divination, by the stars, by spirits, by ghosts, by dreams, and otherwise — a notable example of the senseless curiosity of our nature, occupying itself with future matters, as if it had not enough to do in digesting those at hand –…. It is no advantage to know the future; for it is a wretched thing to suffer suspense all to no purpose[.]”

Second, Judge Duncan was interested in the question of whether Psychic Sophie’s business and belief system were “religious” or instead a “way of life.”  But Judge Wilkinson seemed dubious: “If what she’s expressed is a religion, then anything and everything is a religion.”  Kevin Walsh quite rightly suggested to me that skepticism about astrology has a distinguished pedigree dating back at least to St. Augustine.  From Book IV, Chapter 3 of the Confessions:

There was in those days a wise man, very skillful in medicine, and much renowned therein, who had with his own proconsular hand put the Agonistic garland upon my distempered head, not, though, as a physician; for this disease Thou alone healest, who resistest the proud, and givest grace to the humble. But didst Thou fail me even by that old man, or forbear from healing my soul? For when I had become more familiar with him, and hung assiduously and fixedly on his conversation (for though couched in simple language, it was replete with vivacity, life, and earnestness), when he had perceived from my discourse that I was given to books of the horoscope-casters, he, in a kind and fatherly manner, advised me to throw them away, and not vainly bestow the care and labour necessary for useful things upon these vanities; saying that he himself in his earlier years had studied that art with a view to gaining his living by following it as a profession, and that, as he had understood Hippocrates, he would soon have understood this, and yet he had given it up, and followed medicine, for no other reason than that he discovered it to be utterly false, and he, being a man of character, would not gain his living by beguiling people.

Looking forward to the panel’s decision.

The Tale of Psychic Sophie, Part I

Apropos of Trollope and Ike, here’s a neat case — courtesy of CLR Forum friend and former guest Kevin Walsh — that raises all kinds of interesting questions and which was just up for argument at the Fourth Circuit.  It concerns one Psychic Sophie, a self-described “spiritual counselor” operating a business in Chesterfield County, Virginia, which provides the following services (for a fee, of course): Tarot card readings, psychic and clairvoyant readings, and answering strangers’ personal questions in person, over the phone, and via email.  She offered these services from a small office within a larger office complex which included licensed mental health professionals.

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The Weekly Five

The Weekly Five showcases articles about commercial dealings among co-religionists, the reach of anti-discrimination laws, European cases and contexts involving the wearing of religious clothing and the registration of religious groups, and the free speech implications of regulating “spiritual advisors.”

1. Michael A. Helfand (Pepperdine) & Barak D. Richman (Duke), The Challenge of Co-Religionist Commerce: Two former CLR Forum guests argue for a contextualist (as against a formalist) approach to the adjudication of contracts and commercial dealings among members of religious communities. The article also amplifies on Professor Helfand’s previous work on “Establishment Clause creep,” arguing for a more engaged role for courts in this context.

2. Sahar F. Aziz (Texas Tech), Veiled Discrimination: Professor Aziz argues that while Title VII prohibits cover bias, it does a bad job in protecting against “implicit bias arising from negative stereotypes of protected classes”; and “disparate treatment of subgroups of protected classes who do not conform to coercive assimilationist pressures.” This failing is a particular problem for individuals who fall into several categories of protected classes–for example, women with religious commitments.

3. Michelle Biddulph & Dwight G. Newman (both of Saskatchewan), Eweida v. United Kingdom: This is a short and useful piece discussing four recent controversies at the European Court of Human Rights, two of which involve the wearing of religious clothing by Christians and two of which concern the provision of services by religious objectors to gay people.

4. Jeroen Temperman (Erasmus University Rotterdam), Recognition, Registration, and Autonomy of Religious Groups: European Approaches and Their Human Rights Implications: In the context of surveying various categories of demands imposed on religions in Europe for official recognition (including numerical and durational requirements), Professor Temperman argues that these demands are illegitimate. He also reviews the conflict between European states’ egalitarian interests and various religious autonomy interests, reaching a more intermediate conclusion.

5. Nicole Jones, Did Fortune-Tellers See This Coming? Spiritual Counseling, Professional Speech, and the First Amendment: An interesting comment about the ways in which “spiritual counseling” are more similar to religious speech than to professional speech for purposes of the First Amendment and state regulation. The piece discusses the free speech implications of the “Psychic Sophie” case also studied from another angle by my colleague, Mark, in his new piece.

Movsesian on the Rise of the Nones

Mark has a very interesting new paper on the growing importance of the “Nones”–those who claim no religious affiliation at all but by and large are neither atheists nor agnostics. Rather, the Nones reject institutional religious belief. As Mark puts it, “A better term for them might be religious ‘Independents,’ or the familiar ‘spiritual but not religious.'” The paper considers some of the legal ramifications of “none-ism,” including the relationship between group status and legal protection. Here’s the abstract.

The most important recent development in American religion is the dramatic increase in the number of people who claim no religious affiliation — the rise of the Nones. In this Working Paper, I discuss the social factors that explain the rise of the Nones–demography, politics, family, technology, a distrust of institutions generally–and explain what this development might mean for the definition of religion in American law. I focus on a recent federal appeals court case involving a self-styled spiritual adviser, “Psychic Sophie,” who claimed that following her “inner flow” constituted a religion meriting constitutional and statutory protection. I argue that the case is a close one. Protecting Nones as a religion would promote the important goals of state religious neutrality and personal autonomy. On the other hand, religion has always been understood in terms of community. Indeed, as Tocqueville saw, it is precisely religion’s communal aspect that makes it so important to liberal democracy. Granting Nones the status of a religion would fail to capture this important social benefit.

ICLARS Panel: Is Religion Special?

Along with my St. John’s colleague, Marc DeGirolami, and other law and religion scholars from around the world, I spent part of last week at the biannual ICLARS Conference, hosted this year at William and Mary and the University of Virginia. Kudos and thanks to the indefatigable Cole Durham and other conference organizers for an exceptionally helpful  and fun event!

I spoke at Friday’s afternoon session, on a panel, “Is Religion Special?”, moderated by Edward Gaffney of Valparaiso. My co-panelists were Barry Bussey of the Canadian Council of Christian Charities and Micah Schwartzman of the University of Virginia. Bussey presented a paper titled, “Does Religion Merit Special Protection in the Law? (Within the Canadian Legal Context).” Early Canadian Supreme Court cases stressed the country’s Christian heritage, he explained. Over time, however, the Court moved to a concern with religion in general. Now, equality often trumps freedom of religion in the Canadian case law–religious freedom is often the “loser.” I presented my working project on the rise of the Nones–the group of people who claim no religious affiliation–and what it might mean for the definition of religion in American law. As an example, I used the recent “Psychic Sophie” case, in which the Fourth Circuit held that “following one’s inner flow” does not qualify as a religion meriting constitutional and statutory protection. Schwartzman closed the panel with his draft, “Religion as a Legal Proxy.” He addressed the argument that, even if religion as such doesn’t merit special legal protection, religion is a proxy for other comprehensive values that do. Schwartzman is skeptical of this argument. For one thing, he said, interests besides religion–conscience, for example–might also serve as effective proxies for other comprehensive values, without raising religion’s particular concerns.

CLR Faculty at Annual Law and Religion Roundtable

This week, CLR Director Mark Movsesian and Associate Director Marc DeGirolami will participate in the Annual Law and Religion Roundtable, hosted this year at Stanford Law School. Now in its fourth year, the  ALRR “provides a forum for scholars of religious freedom to share cutting-edge works and engage in discipline-shaping conversations.” Movsesian will present an early-stage project on the Psychic Sophie case and the rise of the Nones. DeGirolami will participate in the meeting as a discussant.

Movsesian at the European University Institute (June 3)

For CLR Forum readers in the area, I’ll be giving a talk, “Psychic Sophie and the Rise of the Nones,” next week at the European University Institute in Florence. My talk will be sponsored by the Institute’s ReligioWest project. Here’s the abstract:

The most important story in American religion today is the rise of the “Nones,” the category of people who declare no religious affiliation. Approximately one-fifth of American adults are in this category, and their numbers have exploded in the past two decades. Surprisingly, perhaps, the Nones tend to be believers; very few of them say they are atheists or agnostics. They reject not belief but organized religion, and draw on a variety of traditions to create their own, a la carte, spiritualities. In this paper, I explore the rise of the Nones and the tensions it exposes in American law, particularly with regard to the definition of religion. To illustrate, I rely on a recent US appeals court case in which the plaintiff, “Psychic Sophie,” argued that the state had interfered with the exercise of her religion — which she defined, in typical None fashion, as “following her inner flow.”

Details are here. Stop by and say hello!

John Locke’s Constitution for the Carolinas (1669): Thoughts on “Churches”

John Locke drafted a constitution for the Carolinas in 1669, entitled, “The Fundamental Constitutions of Carolina.”  His draft was never ratified, but here are some provisions relating to “churches” which may be of some interest, in light of the resurgence of scholarship involving the liberty of the church:

Ninety-seven. But since the natives of that place, who will be concerned in our plantation, are utterly strangers to Christianity, whose idolatry, ignorance, or mistake gives us no right to expel or use them ill; and those who remove from other parts to plant there will unavoidably be of different opinions concerning matters of religion, the liberty whereof they will expect to have allowed them, and it will not be reasonable for us, on this account, to keep them out, that civil peace may be maintained amidst diversity of opinions, and our agreement and compact with all men may be duly and faithfully observed; the violation whereof, upon what presence soever, cannot be without great offence to Almighty God, and great scandal to the true religion which we profess; and also that Jews, heathens, and other dissenters from the purity of Christian religion may not be scared and kept at a distance from it, but, by having an opportunity of acquainting themselves with the truth and reasonableness of its doctrines, and the peaceableness and inoffensiveness of its professors, may, by good usage and persuasion, and all those convincing methods of gentleness and meekness, suitable to the rules and design of the gospel, be won ever to embrace and unfeignedly receive the truth; therefore, any seven or more persons agreeing in any religion, shall constitute a church or profession, to which they shall give some name, to distinguish it from others.

….

One hundred. In the terms of communion of every church or profession, these following shall be three; without which no agreement or assembly of men, upon presence of religion, shall be accounted a church or profession within these rules:

1st. “That there is a God.”

II. “That God is publicly to be worshipped.”

III. “That it is lawful and the duty of every man, being thereunto called by those that govern, to bear witness to truth; and that every church or profession shall, in their terms of communion, set down the external way whereby they witness a truth as in the presence of God, whether it be by laying hands on or kissing the bible, as in the Church of England, or by holding up the hand, or any other sensible way.”

Some thoughts on the language about “churches” and what constitutes them:

1. Locke seems to want to be generous for, among other reasons (some religious), the strategic reason of conversion.  He recognizes that the many “strangers” to Christianity will expect religious liberty, and maintenance of civic peace demands that they have it, but “by good usage and persuasion” these people are hopefully to be converted.  All of this is familiar from the Letter Concerning Toleration, but what really interested me was the final line of section 97: “therefore, any seven or more persons agreeing in any religion, shall constitute a church or profession, to which they shall give some name, to distinguish it from others.”  Notice Locke’s emphasis on, to use a legal term, numerosity!  What constitutes a “church” is in part a numerical characteristic.  You cannot be a “church” under Locke’s constitution with less than seven members.  This numerical feature highlights the sociality of an ecclesial structure.  And we continue to struggle with it today (compare, e.g., Psychic Sophie and related controversies).

2.  But there are also substantive characteristics that must be satisfied.  Belief in God, of course, but notice the public quality of the other two elements!  You cannot be a church unless you worship God “publicly.”  And there must be official rules for that public worship–the church must promulgate rules which “set down the external way” in which  church members will witness the truth as they apprehend it.  The emphasis on these external, public, ritualistic functions of churches–and therefore, in part, on the public functions that they serve, the ‘civil religion’ function–is perhaps not quite so common today but it is still present.

You Are Not a Religion

In Habits of the Heart, written almost 30 years ago, sociologist Robert Bellah and his co-authors came up with a term to describe a new American religion: “Sheilaism.” The phrase comes from an interview Bellah conducted with a woman called  Sheila, who described her religion as follows:

I believe in God. I am not a fanatic. I can’t remember the last time I went to church. My faith has carried me a long way. It’s Sheilaism. Just my own little voice. . . . My own Sheilaism . . . is just to try to love yourself and be gentle with yourself. You know, I guess, take care of each other.

You don’t have to be a sociologist to appreciate how well Sheila’s comments reflect the mindset of millions of Americans. You can dismiss that mindset as empty and self-indulgent, but in the land of  postmodern individualism, Sheilaism has powerful rhetorical appeal. It is preached relentlessly in advertising, books, movies, music, TV programs, even presidential politics (“We are the ones we’ve been waiting for”). It is the effective religion of the “Nones”– the rapidly increasing cohort of Americans who claim no formal religious affiliation–and, one imagines, many churched people as well.

Yet Sheilaism is not a constitutionally recognized religion, at least in the Fourth Circuit. That’s one lesson of the recent, fascinating Psychic Sophie case that Marc described in his post this week. In the case, a Virginia fortune teller, “Psychic Sophie,” argued that local licensing and zoning rules violated her First Amendment right to freely exercise her religion. She described her religion this way:

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 inner flow, and that seems to work best.

She didn’t use the phrase, but Psychic Sophie’s religion is Sheilaism. And, as Marc notes, the Fourth Circuit held that this worldview does not constitute a religion for purposes of the First Amendment. For constitutional purposes, the court reasoned, religion means some organizing principle or authority other than oneself.  Going with one’s inner flow does not qualify.

That makes a good deal of sense. Sheilaism is a very useful concept in sociology, but it doesn’t really work in constitutional law. Recognizing Sheilaism as a religion for constitutional purposes would create all sorts of problems. We’d have millions of religions in America, each of which could claim a right to free exercise. We’d be courting anarchy. 

Or would we? The really interesting thing about the Psychic Sophie case is that it’s so unusual. With so many Sheilaists in America claiming to follow their own paths, surely we should be seeing many more claims for religious exemptions from generally applicable laws. There should be much more friction in American life. But there isn’t. All these free spirits wind up believing pretty much the same things and acting in pretty much the same ways. Perhaps Sheilaism isn’t really about following one’s inner voice, but the voice of the mainstream culture. In which case, Sheilaism isn’t really about individualism, but conformity. Like the guy said, you can have a car painted any color you like–as long as it’s black.

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