Patricia Moore-King v. County of Chesterfield, VA , 708 F.3d 560 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PATRICIA MOORE-KING, 
Plaintiff-Appellant,
v.
COUNTY OF CHESTERFIELD, VIRGINIA;
JAMES J. L. STEGMAIER, County
Administrator, County of  No. 11-2183
Chesterfield; JOSEPH A. HORBAL,
Commissioner of Revenue, County
of Chesterfield, Virginia; THIERRY
G. DUPUIS, Chief of Police, County
of Chesterfield, Virginia,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
John A. Gibney, Jr., District Judge.
(3:09-cv-00804-JAG)
Argued: December 4, 2012
Decided: February 26, 2013
Before TRAXLER, Chief Judge, and WILKINSON and
DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Chief Judge Traxler and Judge Wilkinson
joined.
2 MOORE-KING v. COUNTY OF CHESTERFIELD
COUNSEL
ARGUED: Roman Paul Storzer, STORZER & GREENE,
PLLC, Washington, D.C., for Appellant. David Wayne Rob-
inson, CHESTERFIELD COUNTY ATTORNEY’S OFFICE,
Chesterfield, Virginia, for Appellees. ON BRIEF: Chandra
D. Lantz, HIRSCHLER FLEISCHER, PC, Richmond, Vir-
ginia; John G. Stepanovich, STEPANOVICH LAW, PLC,
Chesapeake, Virginia, for Appellant. Jeffrey L. Mincks,
Stylian P. Parthemos, Julie A. C. Seyfarth, CHESTERFIELD
COUNTY ATTORNEY’S OFFICE, Chesterfield, Virginia,
for Appellees.
OPINION
DUNCAN, Circuit Judge:
Patricia Moore-King ("Moore-King") challenges the appli-
cation of regulations enacted by the County of Chesterfield,
Virginia (the "County") affecting fortune tellers on various
grounds. For the reasons that follow, we affirm the district
court’s grant of summary judgment in favor of the County.
I.
A.
The parties do not dispute the relevant facts. The Chester-
field County Code of Ordinances (the "Code") defines a "for-
tune teller" as
any person or establishment engaged in the occupa-
tion of occult sciences, including a fortune-teller,
palmist, astrologist, numerologist, clairvoyant,
craniologist, phrenologist, card reader, spiritual
MOORE-KING v. COUNTY OF CHESTERFIELD 3
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 fac-
ulties of individuals for any form of compensation.
Code § 6-1. Although Moore-King does not identify herself as
a fortune teller, she agrees that her spiritual counseling activi-
ties fall within the County’s fortune teller definition.
The County regulates fortune tellers in four ways, one of
which is applicable to all those operating a business in the
County, with the others more specific to fortune tellers. First,
every person who has a definite place of business in Chester-
field County, including those covered by the fortune teller
provision, must acquire a business license. Code § 6-2.
Second, a person seeking a business license to practice as
a fortune teller within the County must "apply for and obtain
a permit from the chief of police, or his designee." Code § 15-
246(a).1 The permit application must include biographical
information about the applicant, fingerprints and a written
authorization to allow the chief of police to conduct a back-
ground investigation, and the applicant’s certification that all
information in the application is true. The chief of police is
not to issue a permit if his investigation reveals that "the
applicant has been convicted within the last ten years . . . of
a felony or any other crime materially affecting the appli-
cant’s ability to conduct the permitted activity including a
crime involving moral turpitude, or has been denied a permit
or has had a permit revoked under any [similar] statute or
ordinance." Code § 15-246(d). Section 15-246 also includes
procedures for the suspension or revocation of a fortune teller
permit.
1
Chapter 15 of the Code identifies fortune tellers as one of eleven "regu-
lated occupations and services." Other occupations regulated under the
chapter include bondsmen, precious metal dealers, solicitors, taxicab driv-
ers, licensed salvage dealers, demolishers, rebuilders, vehicle removal
operators, and pawnbrokers.
4 MOORE-KING v. COUNTY OF CHESTERFIELD
Third, the Code imposes a license tax of $300.00 on fortune
tellers and fines any person who acts as an unlicensed fortune
teller not less than $50.00 and not more than $500.00 for each
such offense. Code § 6-44. The Code also imposes an annual
business license fee for businesses with more than $10,000
but less than $200,000 in gross receipts. Code § 6-4. No fee
applies if a business receives less than $10,000 in gross
receipts. Id.
Finally, the County regulates fortune tellers through its
zoning ordinances. These ordinances allow "occult sciences,"
which includes fortune telling, as a conditional use within the
C-5 General Business District. Being eligible for C-5 also
enables fortune tellers who have acquired a conditional use
permit to operate in the Agricultural ("A"), General Industrial
("I-2"), and Heavy Industrial ("I-3) zoning districts. The "con-
ditional use" designation is reserved for "those uses which,
because of their unique characteristics, cannot be permitted by
right in a particular district or districts, without consideration,
in each case, of the impact of those uses upon neighboring
land and of the public need for the particular use of the partic-
ular location." Code § 19-14. Between January 1, 2005 and
December 31, 2009, the County’s Board of Supervisors
approved 115 of the 119 applications for conditional use per-
mits. J.A. 170.
Beginning in late 2008, Patricia Moore-King sought to
offer services as a psychic and spiritual counselor in Chester-
field County under the name of "Psychic Sophie." She rented
office space in an area zoned as a C-3 Community Business
District. Other tenants included clinical psychologists and
licensed professional counselors.
Both on her website2 and in an affidavit submitted to the
district court, Moore-King describes her beliefs and identifies
2
Any discussion of Moore-King’s website refers to pages of the website
placed in the Joint Appendix by the parties.
MOORE-KING v. COUNTY OF CHESTERFIELD 5
the broad range of her interests. In her own words: "I am very
spiritual in nature, yet I do not follow particular religions or
practices, and ‘organized’ anything’s [sic] are not for me. I
pretty much go with my inner flow, and that seems to work
best." J.A. 123. Moore-King draws inspiration from a diverse
array of sources:
Spirituality, astrology, Reiki, natural healing, medi-
tation, mind-body-soul-spirit-chakra study, meta-
physics in general, new age philosophy, psychology,
human behavior, quantum physics, ancient history,
philosophy, Kabala/Kabbalah, writing, jewelry mak-
ing, reading (Manly P. Hall, Madame 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.
Id. She further professes a strong belief in the "words and
teachings of Jesus . . . which [she] believe[s] are incorporated
into tarot cards" and a belief in "the New Age movement,"
which Moore-King describes as "a decentralized Western
spiritual movement that seeks Universal Truth and the attain-
ment of the highest individual potential." J.A. 201. She incor-
porates these beliefs into the spiritual counseling she provides
to her clients.
Spiritual counseling involving a psychic reading is appar-
ently Moore-King’s primary practice. This counseling appears
to consist largely of her use of tarot cards in conjunction with
her client’s name and astrological sign—as well as the name
and astrological sign of any other person about whom the cli-
ent wishes to inquire—to attempt to perceive whatever she
can on behalf of the client. Clients often bring Moore-King
specific inquiries about their businesses, relationships, or
other personal matters. She encourages clients to take notes
during their sessions in order to remember details of what she
has said, and to ask her questions about anything that remains
unclear.
6 MOORE-KING v. COUNTY OF CHESTERFIELD
B.
In August 2009, authorities from the County contacted
Moore-King and informed her she needed a business license
to operate. When Moore-King sought to register with the
County’s Commissioner of Revenue as a business likely to
earn less than $10,000 in annual revenue, she learned that the
County classified her as a fortune teller as defined in the
County Code. She then received a letter informing her that
she owed the County $343.75, consisting of the $300 fortune
teller license tax under Code § 6-44 and a penalty and accrued
interest for late payment.
Moore-King chose not to pay the license tax but instead to
challenge the legality of the County’s regulatory scheme. In
December 2009, she filed a complaint against the County
alleging seven counts under the Constitution and federal statu-
tory law. She asserted violations of her First Amendment
rights to free speech and the free exercise of religion; statu-
tory claims under the Religious Land Use and Institutional-
ized Persons Act (the "RLUIPA"), 42 U.S.C. § 2000cc et seq.;
and allegations that the County’s regulatory treatment of her
violated the Equal Protection Clause. The County filed a
motion to dismiss, and, following a period of discovery, both
the County and Moore-King filed motions for summary judg-
ment.
On September 30, 2011, the district court entered a memo-
randum opinion and order denying the County’s motion to
dismiss, denying Moore-King’s summary judgment motion,
and granting summary judgment in favor of the County. The
district court began its analysis of Moore-King’s free speech
claim by characterizing the County’s measures as "de minimis
regulation of her business . . . common to all businesses in
Virginia and, most likely, in the entire nation." Moore-King
v. County of Chesterfield, 819 F. Supp. 2d 604, 617 (E.D. Va.
2011). It specifically held that Moore-King’s business and
speech purporting to predict future events constituted "quin-
MOORE-KING v. COUNTY OF CHESTERFIELD 7
tessential deception," id. at 618, and was thus not entitled to
any First Amendment protection.
The district court also offered two alternative rationales for
its disposition of Moore-King’s free speech claim. First, it
concluded that because "verbiage is the product that [Moore-
King] sells," the County justifiably regulated her activities as
"commercial speech" subject to lessened First Amendment
protection. Id. at 619-21. Second, even if Moore-King’s activ-
ities were not considered commercial speech, the County’s
regulations passed constitutional muster as valid time, place,
and manner restrictions because they properly "balance the
need to protect the public from unscrupulous charlatans with
the opportunity for fortune tellers to practice their profession."
Id. at 621.
The district court then addressed Moore-King’s remaining
arguments. As to Moore-King’s free exercise and RLUIPA
claims, the district court found that Moore-King followed no
particular religion in large part because she "expressly dis-
avows that her beliefs are rooted in any religion." Id. at 622.
It found further support for its conclusion in the "panoramic
potpourri of [her] spiritual and secular interests" and her "fee
for service model" approach to counseling. Id. at 622-23; see
also id. at 623 ("Religious experience is not typically thought
of as purchased chunks at a time."). Having concluded
Moore-King was not engaged in the practice of a religion, the
district court granted summary judgment to the County on
both Moore-King’s constitutional and statutory religion
claims. Finally, finding no entity or individual similarly situ-
ated to but treated differently from Moore-King, the district
court determined that the County’s regulation of Moore-King
as a fortune teller did not violate the Equal Protection Clause.
Moore-King now appeals.
II.
Moore-King presses four arguments on appeal. First, she
asserts that the County’s regulatory scheme violates her First
8 MOORE-KING v. COUNTY OF CHESTERFIELD
Amendment right to free speech. Second, she argues that the
County has violated her right to the free exercise of her reli-
gion, also protected by the First Amendment. Her third con-
tention is similar: that the County has substantially burdened
her religious exercise in violation of the RLUIPA. Finally,
Moore-King claims that the County’s regulatory scheme
treats her differently than similarly situated people or entities,
and in so doing, violates the Constitution’s Equal Protection
Clause. The district court considered and rejected each of
these arguments. We review its opinion granting summary
judgment to the County de novo, Webster v. U.S. Dep’t of
Agric., 685 F.3d 411, 421 (4th Cir. 2012), and only affirm "if
taking the evidence and all reasonable inferences drawn there-
from in the light most favorable to [Moore-King], ‘no mate-
rial facts are disputed and the [County] is entitled to judgment
as a matter of law,’" Henry v. Purnell, 652 F.3d 524, 531 (4th
Cir. 2011) (en banc) (quoting Ausherman v. Bank of Am.
Corp., 352 F.3d 896, 899 (4th Cir. 2003)). We begin with
Moore-King’s free speech claim.
A.
Moore-King contends the County’s regulatory scheme for
fortune tellers trenches upon her constitutional right to free
expression. The County responds that Moore-King’s business
involves inherently deceptive speech undeserving of any First
Amendment protection. We therefore must decide whether
Moore-King’s spiritual counseling activities merit protection
under the First Amendment’s Free Speech Clause, and if so,
at what level.
1.
The County’s argument rests on two premises: (1) fortune
telling is inherently deceptive; and (2) inherently deceptive
speech warrants no protection under the First Amendment.
We examine each in turn.
MOORE-KING v. COUNTY OF CHESTERFIELD 9
The County contends that fortune telling constitutes inher-
ently deceptive speech because it involves an attempt to pre-
dict the future. Indeed, there is some case law to support this
view. See, e.g., Ballard v. Walker, 772 F. Supp. 1335, 1341
(E.D.N.Y 1991); White v. Adams, 343 S.W.2d 793, 793-94
(Ark. 1961); Rodgers v. Southland Racing Corp., 450 S.W.2d
3, 5 (Ark. 1970); Mitchell v. City of Birmingham, 133 So. 13,
14 (Ala. 1931) ("So associated with cheats, frauds, imposition
upon the credulous and superstition is such profession [i.e.,
fortune telling], that its absolute prohibition is generally
declared to be within the police power of the state, and munic-
ipalities to which such power is delegated.").
As more recent case law appears to recognize, however,
fortune telling is not necessarily fraudulent or inherently
deceptive simply because it involves predictive speech. See,
e.g., Argello v. City of Lincoln, 143 F.3d 1152, 1153 (8th Cir.
1998); Adams v. City of Alexandria, 878 F. Supp. 2d 685,
690-91 (W.D. La. 2012); Nefedro v. Montgomery Cnty., 996
A.2d 850, 858 (Md. 2010); Spiritual Psychic Sci. Church of
Truth v. City of Azusa, 703 P.2d 1119, 1126 (Cal. 1985)
("[S]ome persons believe they possess the power to predict
what has not yet come to pass. When such persons impart
their beliefs to others, they are not acting fraudulently; they
are communicating opinions which, however dubious, are
unquestionably protected by the Constitution."). 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 state-
ments that turn out not to be true). The reality that much pro-
fessional 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.
At any rate, the record does not support the district court’s
broad conclusion that "[t]he undisputed evidence in this case
10 MOORE-KING v. COUNTY OF CHESTERFIELD
is that [Moore-King]’s business is deceptive." Moore-King,
819 F. Supp. 2d at 618. Moore-King contends that she does
not deceive her clients, and the record reflects no countervail-
ing evidence to suggest that she does. Aspects of her business
are clearly identified as for entertainment purposes, and the
"Terms/Conditions/Disclaimer" section of her website places
a number of qualifications on the spiritual and clairvoyant
information she purports to provide. See J.A. 151 ("Sophie
does not provide a 100% guarantee, as people, perceptions,
and decisions, can fluctuate, and circumstances out of every-
one’s control can happen."). A jury might well decide that
Moore-King’s activities are fraudulent or deceptive. But at a
minimum this question raises a genuine issue of material fact,
making it unsuitable for decision on a summary judgment
basis.
Moreover, the Supreme Court’s recent decision in United
States v. Alvarez, 132 S. Ct. 2537 (2012), calls into question
the second premise of the County’s argument: that inherently
deceptive speech is without First Amendment protection.
"Even when considering some instances of defamation and
fraud, moreover, the Court has been careful to instruct that
falsity alone may not suffice to bring the speech outside the
First Amendment. The statement must be a knowing or reck-
less falsehood." Id. at 2545; see also id. at 2557 (Alito, J., dis-
senting) (noting that the plurality opinion "breaks sharply
from a long line of cases recognizing that the right to free
speech does not protect false factual statements that inflict
real harm and serve no legitimate interest"). Here, the County
has not specifically argued that Moore-King’s speech is
knowingly or recklessly false. Absent such arguments, we
cannot agree with the County’s position that inherently decep-
tive speech necessarily lacks First Amendment protection.
The County cannot establish either premise of its argument
that fortune telling is inherently deceptive speech outside the
scope of the First Amendment. Consequentially, we conclude
MOORE-KING v. COUNTY OF CHESTERFIELD 11
that the First Amendment Free Speech Clause affords some
degree of protection to Moore-King’s activities.
2.
We now turn to the more challenging question of the appro-
priate level of First Amendment protection accorded Moore-
King’s counseling activities. The court below focused primar-
ily on the nature of the protected expression. In its first alter-
native holding, the district court classified Moore-King’s
psychic and counseling activities as commercial speech, and
concluded that the County had justifiably regulated her activi-
ties as such. Although the County agrees with this conclusion,
on appeal it emphasizes that its regulations can be viewed as
reasonable content-neutral time, place, and manner restric-
tions subject to (and passing muster under) intermediate scru-
tiny. Moore-King does not challenge application of the time,
place, and manner framework, but contends that the County’s
ordinances regulate her activities on the basis of content and
viewpoint, and thus trigger strict scrutiny review which the
ordinances cannot survive. Thus, at the outset, we must con-
sider whether commercial speech or the time, place, and man-
ner doctrine supplies the proper analytical framework.
Yet neither of these doctrines is a perfect fit. The parame-
ters of commercial speech, typically defined as that which
"does no more than propose a commercial transaction," Va.
State Bd. of Pharmacy v. Va. Citizens Consumer Council,
Inc., 425 U.S. 748, 762 (1976) (citation and internal punctua-
tion omitted), are difficult to identify outside the realm of
advertising, see, e.g., City of Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 419, (1993) (observing "the difficulty of
drawing bright lines that will clearly cabin commercial speech
in a distinct category"). Certainly some aspects of Moore-
King’s speech propose a transaction—she is, after all, running
a business—but it seems equally the case that not all of her
psychic activities and spiritual counseling practices are com-
mercial in the same sense. Courts considering fortune teller
12 MOORE-KING v. COUNTY OF CHESTERFIELD
ordinances have reached no consensus on whether to apply a
commercial speech analysis or not. See, e.g., Argello, 143
F.3d at 1153 (noting fortune telling for compensation consists
of both commercial and noncommercial speech).
Moreover, with one unhelpful exception, we can find no
case or set of cases applying the time, place, and manner
framework to the regulation of an occupation. The exception
involves exotic dancing cases. See, e.g., City of Erie v. Pap’s
A.M., 529 U.S. 277 (2000); Barnes v. Glen Theatre, Inc., 501
U.S. 560 (1991). In those cases, however, the Supreme Court
has failed to provide clear guidance on the operation of the
content-neutrality analysis within that framework. See Daniel
A. Farber, The First Amendment 27 (3d ed. 2010) ("In the
nude dancing cases . . . the Court has been unable to agree on
a single standard for defining content neutrality.").
At its core this case "involves a collision between the
power of government to license and regulate those who would
pursue a profession or vocation and the rights of freedom of
speech . . . guaranteed by the First Amendment." Lowe v.
S.E.C., 472 U.S. 181, 228 (1985) (White, J., concurring). The
Supreme Court has recognized the regulation of occupational
speech under the "professional speech" doctrine at least since
Justice Jackson’s concurrence in Thomas v. Collins, 323 U.S.
516 (1945). See generally David Halberstam, Commercial
Speech, Professional Speech, and the Constitutional Status of
Social Institutions, 147 U. Pa. L. Rev. 771, 834-44 (1999)
(discussing history and development of professional speech
doctrine). Considering a Texas law requiring a labor organizer
to register with the Secretary of State before soliciting on
behalf of his organization, Justice Jackson articulated the jus-
tification for the professional speech doctrine:
The modern state owes and attempts to perform a
duty to protect the public from those who seek for
one purpose or another to obtain its money. When
one does so through the practice of a calling, the
MOORE-KING v. COUNTY OF CHESTERFIELD 13
state may have an interest in shielding the public
against the untrustworthy, the incompetent, or the
irresponsible, or against unauthorized representation
of agency. A usual method of performing this func-
tion is through a licensing system . . . . Very many
are the interests which the state may protect against
the practice of an occupation, very few are those it
may assume to protect against the practice of propa-
gandizing by speech or press.
Thomas, 323 U.S. at 545 (Jackson, J., concurring). In describ-
ing the relationship between the doctrine of professional
speech and protected expression, Justice Jackson observed
that a "state may forbid one without its license to practice law
as a vocation, but . . . could not stop an unlicensed person
from making a speech about the rights of man or the rights of
labor, or any other kind of right, including recommending that
his hearers organize to support his views." Id. at 544. Simi-
larly, in Justice Jackson’s view, the state could prohibit the
practice of unlicensed medicine, but could not "make it a
crime publicly or privately to speak urging persons to follow
or reject any school of medical thought." Id.Thus, the relevant inquiry to determine whether to apply
the professional speech doctrine is whether the speaker is pro-
viding personalized advice in a private setting to a paying cli-
ent or instead engages in public discussion and commentary.
Professional speech analysis applies in the former con-
text—where a speaker "takes the affairs of a client personally
in hand and purports to exercise judgment on behalf of the cli-
ent in the light of the client’s individual needs and circum-
stances," Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602,
604 (4th Cir. 1988) (quoting Lowe, 181 U.S. at 232 (White,
J. concurring))—but not in the latter. See also Robert C. Post,
Democracy, Expertise, and Academic Freedom 24 (2012)
("Within public discourse, the First Amendment requires law
to respect the autonomy of speakers rather than to protect the
targets of speech; outside public discourse, the First Amend-
14 MOORE-KING v. COUNTY OF CHESTERFIELD
ment permits the state to control the autonomy of speakers in
order to protect the dignity of the targets of speech.").
Under the professional speech doctrine, the government can
license and regulate those who would provide services to their
clients for compensation without running afoul of the First
Amendment. Put differently, "[t]he power of government to
regulate the professions is not lost whenever the practice of a
profession entails speech." Lowe, 181 U.S. at 228 (White, J.,
concurring). And a state’s regulation of a profession raises no
First Amendment problem where it amounts to "generally
applicable licensing provisions" affecting those who practice
the profession. Id. at 232; see also Accountant’s Soc’y of Va.,
860 F.2d at 604 ("A statute that governs the practice of an
occupation is not unconstitutional as an abridgment of the
right to free speech, so long as ‘any inhibition of that right is
merely the incidental effect of observing an otherwise legiti-
mate regulation.’" (quoting Underhill Assoc. v. Bradshaw,
674 F.2d 293, 296 (4th Cir. 1982))). So it is here.
Moore-King’s activities fit comfortably within the confines
of professional speech analysis. As Moore-King describes and
as we have recounted, her psychic activities and spiritual
counseling generally involve a personalized reading for a pay-
ing client. And as the record makes clear, Moore-King "takes
the affairs of a client personally in hand and purports to exer-
cise judgment on behalf of the client in the light of the client’s
individual needs and circumstances." Accountant’s Soc’y of
Va., 860 F.2d at 604 (quotation omitted).
Moreover, the County has enacted a generally applicable
licensing and regulatory regime for fortune tellers, that is, for
anyone who, like Moore-King, "claims or pretends to disclose
mental faculties of individuals for any form of compensation."
Code § 6-1. Unlike a number of government entities that have
imposed outright bans on fortune tellers, see Argello, 143
F.3d at 1152, or bans on those fortune tellers receiving com-
pensation, see, e.g., Nefedro, 996 A.2d at 859, the County uni-
MOORE-KING v. COUNTY OF CHESTERFIELD 15
formly requires any individual seeking to open a business as
a fortune teller to acquire a fortune teller business permit, pay
the fortune teller license tax, and secure a conditional use per-
mit in a district zoned C-5, A, I-2, or I-3. Indeed, although the
steps may differ, the basic paradigm of regulatory require-
ments before one can publicly practice a profession also
applies to law, medicine, taxi-driving, counseling, and many
other occupations.
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 insti-
tution like a board of law examiners or medical practitioners
exists, a legislature may reasonably determine that additional
regulatory requirements are necessary. Cf. Garcetti v. Cebal-
los, 547 U.S. 410, 446 (2006) (Breyer, J., dissenting) (noting
that where speech "is subject to independent regulation by
canons of the profession . . . the government’s own interest in
forbidding that speech is diminished").
To recognize the variability inherent in occupational regu-
lations is not to afford the government carte blanche in craft-
ing or implementing those regulations. We need not delineate
the precise boundaries of permissible occupational regulation
under the professional speech doctrine in this case because we
hold that the County’s regulation of Moore-King’s activities
falls squarely within the scope of that doctrine. The County’s
16 MOORE-KING v. COUNTY OF CHESTERFIELD
regulations therefore do not abridge Moore-King’s First
Amendment freedom of speech.3
B.
Moore-King also argues that the County’s regulatory
scheme interferes with the free exercise of her religion under
the First Amendment and the RLUIPA, which in pertinent
part prohibits a government from enacting a land use regula-
tion that imposes a "substantial burden on the religious exer-
cise of a person." 42 U.S.C. § 2000cc(a)(1). The County
contends Moore-King’s set of beliefs does not constitute a
religion, and the district court agreed. So do we.
To determine whether Moore-King’s set of beliefs deserves
constitutional protection as a religion, we consider whether
they are (1) sincerely held and (2) religious in nature under
Moore-King’s "scheme of things." United States v. Seeger,
380 U.S. 163, 185 (1965). Because the parties agree and the
record supports the view that Moore-King sincerely holds her
beliefs, we focus on the second prong. In so doing, we ask
whether her beliefs occupy a place in her life "parallel to that
filled by the orthodox belief in God." Id. at 166; Dettmer v.
Landon, 799 F.2d 929, 931 (4th Cir. 1986). Although Moore-
3
Moore-King also challenges the County’s fortune teller definition
under the Free Speech Clause as overbroad and vague. Neither argument
has merit. Her claim that the County’s regulatory scheme prohibits a sub-
stantial amount of protected speech—and is thus overbroad—fails because
the County’s regulations do not prohibit any speech at all. To succeed on
a vagueness challenge, Moore-King must show either that the regulation
"fails to provide people of ordinary intelligence a reasonable opportunity
to understand what conduct it prohibits" or that it "authorizes or even
encourages arbitrary and discriminatory enforcement." Hill v. Colorado,
530 U.S. 703, 732 (2000). In taking the former path, Moore-King omits
in her brief the aspects of the County’s fortune teller definition that pro-
vide significant insight to a person of ordinary intelligence: that a fortune
teller is a person "who in any . . . manner claims or pretends to tell for-
tunes or claims or pretends to disclose mental faculties of individuals for
any form of compensation." Code § 6-1. This definition is not vague.
MOORE-KING v. COUNTY OF CHESTERFIELD 17
King’s "beliefs need not be acceptable, logical, consistent, or
comprehensible to others in order to merit First Amendment
protection," Morrison v. Garraghty, 239 F.3d 648, 658 (4th
Cir. 2001) (quoting Thomas v. Review Bd., 450 U.S. 707, 714
(1981)), they must nonetheless amount to a religious faith as
opposed to a way of life, Wisconsin v. Yoder, 406 U.S. 205,
215 (1972).
The Supreme Court’s seminal decision in Yoder provides
guidance on the distinction between a religion and a way of
life. Illustrating rather than defining this distinction, the Court
observed that although both the Old Order Amish and Henry
David Thoreau rejected "contemporary secular values
accepted by the majority . . . Thoreau’s choice was philosoph-
ical and personal rather than religious [and therefore did not]
rise to the demands of the Religious Clauses." Yoder, 406
U.S. at 216. By contrast, seclusion from modern society for
the Amish was "not merely a matter of personal preference,
but one of deep religious conviction, shared by an organized
group, and intimately related to daily living." Id. The distinc-
tion between a religion and a way life mattered, the Court rea-
soned, because a "way of life, however virtuous and
admirable, may not be interposed as a barrier to reasonable
state regulation . . . ." Id. at 215. Indeed, "the very concept of
ordered liberty precludes allowing every person to make his
own standards on matters of conduct in which society as a
whole has important interests." Id. at 215-16.
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 lib-
18 MOORE-KING v. COUNTY OF CHESTERFIELD
erty." 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." J.A. 123. That a
wide variety of sources—the New Age movement, the teach-
ings 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
anymore than did Thoreau’s commitment to Transcendental-
ism and idealist philosophy render his views religious.
To describe Moore-King’s beliefs as a way of life but not
a religion is not to belittle them. Indeed, the Supreme Court
cautioned in Yoder that a "way of life that is odd or even
erratic but interferes with no rights or interests of others is not
to be condemned because it is different." 406 U.S. at 224.
That Moore-King draws inspiration from an eclectic range of
sources or that she charges her clients for her psychic activi-
ties and spiritual counseling neither affects our analysis nor
elicits our condemnation. We observe only that she cannot
avail herself of the protections afforded those engaged in the
practice of religion.
Having determined that Moore-King’s beliefs comprise a
way of life, and not religious exercise, we agree with the dis-
trict court’s conclusion that granting summary judgment to
the County on Moore-King’s constitutional and statutory reli-
gion claims is proper.
C.
We turn finally to Moore-King’s Equal Protection argu-
ment. She first contends that the County’s regulatory scheme
triggers strict scrutiny under the Equal Protection Clause
because it classifies her on the basis of her First Amendment
rights. But as we have already explained, the County’s regula-
tions do not infringe Moore-King’s right to free speech or the
free exercise of religion. Consequentially, we do not apply
MOORE-KING v. COUNTY OF CHESTERFIELD 19
heightened scrutiny when reviewing her Equal Protection
challenge. See City of New Orleans v. Dukes, 427 U.S. 297,
303 (1976) ("Unless a classification trammels fundamental
personal rights or is drawn upon inherently suspect distinc-
tions such as race, religion, or alienage, our decisions presume
the constitutionality of the statutory discriminations and
require only that the classification challenged be rationally
related to a legitimate state interest.").
A zoning or licensing ordinance violates the Equal Protec-
tion Clause where the plaintiff can demonstrate "that she has
been intentionally treated differently from others similarly sit-
uated and that there is no rational basis for the difference in
treatment." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000) (per curiam). Consistent with rational basis review, we
presume the validity of the County’s fortune teller regula-
tions, and, because they concern matters of social and eco-
nomic policy, we afford the County "wide latitude." City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985);
see also Dukes, 427 U.S. at 303 ("States are accorded wide
latitude in the regulation of their local economies under their
police powers, and rational distinctions may be made with
substantially less than mathematical exactitude."); Greenville
Women’s Clinic v. Bryant, 222 F.3d 157, 172 (4th Cir. 2000)
("[C]lassifications in legislation ordinarily will be upheld
against an equal protection challenge if ‘there is any reason-
ably conceivable state of facts that could provide a rational
basis for the classification.’" (citation omitted)). Moore-King
argues she was irrationally treated differently from those
engaged in "other office uses"; other fortune tellers, like those
at church-sponsored fairs or telling fortunes as stage actors;
and other "spiritual readers," "prophets," "psychics," or "advi-
sors." The County contends that Moore-King is not in fact
similarly situated to any of these entities, and even if she is,
any differential treatment is not without a rational basis.
Moore-King’s arguments cannot overcome the deferential
standard we must accord to the County’s regulatory scheme.
20 MOORE-KING v. COUNTY OF CHESTERFIELD
Assuming without deciding that Moore-King is situated simi-
larly to the entities she identifies, we nonetheless conclude
that she fails to carry her burden of negating "every conceiv-
able basis which might support" the County’s zoning and
licensing ordinances. FCC v. Beach Communications, Inc.,
508 U.S. 307, 315 (1993) (quoting Lehnhausen v. Lake Shore
Auto Parts Co., 410 U.S. 356, 364 (1973)). The County may
believe it appropriate to impose higher entry costs or more
stringent zoning limitations4 on those seeking to open a busi-
ness as a fortune teller than on "other office uses" such as
financial advisers, party planners, nonprofit organizations, or
import-export companies—the examples Moore-King
gives—in order to discourage the—in Moore-King’s
words—"innumerable scam artists"5 that might otherwise
operate as fortune tellers and take advantage of the County’s
citizens. Likewise, the County could rationally suppose it
proper to place greater regulatory burdens on Moore-King’s
counseling activities than on the licensed counselors and
advisers to whom she seeks to compare herself. Granting the
County wide latitude to determine how to regulate those who
claim or pretend "to disclose mental faculties of individuals
for any form of compensation," we cannot say the County’s
regulatory scheme lacks any rational relationship to a legiti-
mate governmental interest.
III.
For the reasons discussed, we affirm.
AFFIRMED
4
Moore-King notes in her brief that her current office location in a C-3
district contravenes the County’s zoning requirement that fortune tellers
operate, with a conditional use permit, in a C-5, A, I-2, or I-3 district.
Moreover, she cannot directly challenge the C-3 zoning of her current
location because she rents and does not own her office space.
5
On her website, Moore-King notes that "[m]any legitimate psychics
have been tainted by innumerable scam artists who con unsuspecting indi-
viduals for hundreds if not thousands of dollars . . . ." J.A. 143.