Which is More Esoteric, Tarot Cards or the Stock Market?

Chesterfield County, VA, is not a fan of fortunetellers, but Sophie King argues that she is not a fortuneteller, but a spiritual counselor. While it appears to be nothing more than an argument over semantics, the distinction has real legal consequences in Chesterfield. Fortunetellers must get a special license, like bondsmen, nightclub operators, and adult business operators (municipal ordinance Part II Sec. 6.7) to operate. A fortuneteller is required to submit “A certificate signed by five county citizens that the person is of good character and honest demeanor” (Part II Sec. 15.246), as well as submitting to a background check and zoning restrictions which other business owners are not required to do. Moreover, a fortuneteller is defined as “any person or establishment engaged in the occupation of occult sciences, including a fortune-teller, palmist, astrologist, numerologist, clairvoyant, craniologist, phrenologist, card reader, spiritual reader, tea leaf reader, prophet, psychic or advisor or who in any other manner claims or pretends to tell fortunes or claims or pretends to disclose mental faculties of individuals for any form of compensation” (Part II Sec. 6.1). King claims to be a spiritual counselor because she does not predict the future. According to the county, because she reads cards, she is a fortuneteller. So, King filed suit that “Chesterfield is violating her constitutional rights to free speech, free exercise of religion and equal protection.” Read the full article here.

Many of the comments to this article argue for one of two distinctions: that she is not a religion (that is, that she by herself does not make up a religion, instead of that her practices are not religious practices) and so does not get the protection of a religious institution or that she is running a business and therefore does not get the protection. Those not the important distinction here, though, nor is it what she is challenging. King is not arguing that she should not be required, for example, to pay any business tax like any other business. Rather, she is arguing that by singling out “fortunetellers,” the county is making an unconstitutional religious distinction. In fact, many other counties do not make this distinction – that is, fortunetelling is not singled out in any way. It is just another business. Chesterfield, by singling out fortunetelling, may be taking fortunetelling more seriously than even King herself, who says that its just another form of spiritual counseling.

Though King is using the First Amendment – free exercise of religion – to file suit, she uses the language of spirituality in her arguments. She, at least according to this article, is not connecting her spiritual counseling to any specific religious institution, but to a more amorphous, loosely defined “spirituality,” as in, “I’m not religious, but spiritual.” Chesterfield County, in its municipal code, is making this same distinction, too. Its municipal code does not allow for religious practice in its definition of fortunetelling, but instead calls it an “occult science.” As this goes to court, though, Chesterfield will have to decide just how they will interpret free exercise as its citizens begin to identify with religious institutions less and less.

In Winnifred Fallers Sullivan’s The Impossibility of Religious Freedom, she shows that courts, at least in Florida but arguably across the United States to a greater or lesser degree, require a practice must be required by a religious tradition everywhere that religious tradition is practice and every time it has been practiced historically in order to be protected. If, as in the case Sullivan studied, the practices are ones that are taught by family instead of institution and not required within religious texts, these practices are a matter of personal choice and therefore not protected. What that may mean, as King’s case shows, is that this trend of moving from institutional religion to a more amorphous “none” will make free exercise, as the courts understand, moot. That is, if fewer and fewer people identify with institutional religions, many of their practices will not be based upon institutional mandate and therefore will not be protected under the First Amendment.

What does that mean for King? Spiritual counseling may not matter. Unless she can show that it is required by some acknowledged religious institution, it may not count as protected. Fortunetelling, after all, appears to be one of those somewhat ubiquitous practices that often occurs unconnected with institutional oversight. However, it presents an interesting question for free exercise. If citizens no longer acknowledge religious institutions that can dictate required practices, instead choosing to do something because of spiritual motivation (whatever that may mean), are their practices protected under the First Amendment?