Why Phoenix Goddess Temple Founder Couldn't Employ a Religious-Defense Argument

From the moment Tracy Elise, head priestess and founder of the Phoenix Goddess Temple, was arrested and accused of running of a brothel, she began saying that her legal case was about religious freedom, not prostitution.

The authorities, meanwhile, maintained just the opposite: “This is no more a church than Cuba is Fantasy Island,” Maricopa County Attorney Bill Montgomery famously stated at a press conference following Elise’s arrest.

As New Times wrote about in this week’s cover story, “The Trouble with Sex,” Elise sincerely believes the Tantric or “sacred sexuality” work she and others did inside the temple was part of her religion, but the court barred her from making that argument — we’ll get into why that was the case, but, first, a quick recap of her story:

Elise and dozens of others affiliated with the temple were arrested in 2011 after a New Times cover story called the temple a New Age brothel, and got the attention of the Phoenix Police Department. The police conducted a six-month undercover investigation that culminated in a dramatic and international headline-grabbing raid of the temple.

Like her co-defendants, Elise was charged with multiple criminal counts — prostitution, maintaining a house of prostitution, illegal control of an enterprise, money laundering, pandering, racketeering, and conspiracy for her role in operating the Goddess Temple – but as the leader and founder of the temple, she refused to take a plea bargain.

Her trial began last November and dragged on for four months, but really it all came down to one simple question:

Was the money left by those coming to the temple (called "seekers") a donation to the church for a healing ceremony or an explicit fee for sexual services performed by temple workers (called practitioners)? In other words: was it sacred healing or straight-up prostitution?

Both sides offered compelling evidence, but on March 2, a jury found Elise – who represented herself in the trial – guilty of 22 criminal counts related to prostitution. She was taken into custody on the spot, and is in Estrella Women’s Jail awaiting her scheduled May 6 sentencing.
In the years since the pre-trial proceedings began, Elise has filed motion after motion arguing that her legal troubles are an issue of religious freedom, that the state is violating her Constitutional rights, and that the jury instructions should include language from the U.S. Constitution about the Free Exercise of Religion Act.

The state, meanwhile, countered that Arizona case law shows and explains why Elise can’t use a religious defense, and shortly before closing arguments began, Judge Sherry K. Stephens sided with the prosecution. 

The state’s legal argument has four basic tenets, and here’s an explanation – spelled out in plain English — of what those are and why they were successful.

1. The state said Elise couldn't invoke a defense under the Free Exercise of Religion Act because “operating a house of prostitution is not religious in nature.”

According to a decision by the U.S. Ninth Circuit Court of Appeals, to make an argument under FERA, a defendant must be able to prove that: a) her religious beliefs are sincerely held and that: b) the claims she’s making are “rooted in religious beliefs” and not secular concerns. This is called the “Callahan test,” named after the 1981 case Callahan v. Woods.

The state argued that the Phoenix Goddess Temple fails the Callahan test because: a) practitioners and seekers weren’t “required to have religious beliefs of any sort” making it obvious that “the profit-making activities were not due to a sincerely held religious belief.” And: b) “prostitution is a crime that has no religious aspect.”

“It is possible that there is a spiritual base for some of the Temple’s actions; however, the Temple goes well above and beyond this in soliciting and providing prostitution services,” states a motion filed by the prosecution.

2. The state then argued that “even if the court were to deem the Phoenix Goddess Temple’s actions religious, the First Amendment still is not [an appropriate] defense.”

The U.S. Supreme Court has said that a law created to specifically target the religious practices of a group violates the First Amendment, but that a law that is “facially neutral” – i.e. it doesn’t discriminate against a particular person or group – is not a violation of the First Amendment just because it happens to conflict with religious beliefs. Or, to put it another way, religion is not a valid excuse to violate “generally applicable” laws.

Prostitution laws are considered facially neutral because they apply to everyone equally, the state argued, and so Elise and other practitioners “cannot be allowed to conduct criminal acts because they say it is part of their religious practice.

“This is not a case of an organization being prevented from preaching its beliefs. This is a case in which an organization is attempting to circumvent the law and create an exception in the law for illegal conduct,” the state argued in a motion.

3. Another reason Elise couldn't invoke the Free Exercise of Religion Act, the state said, was because the laws she violated were created to protect “a compelling government interest” and are “the least restrictive means possible” for the government to do so.

A 2006 Arizona Court of Appeals case called State v. Freitag established that when it comes to preventing prostitution, the state has a compelling interest in doing so for the health, safety, and welfare of the public, and a 2009 court case called State v. Hardesty established that creating laws to ban certain activities, prostitution for example, is the least restrictive action the government can take.

(Of importance, the state doesn’t have to prove there are less-restrictive actions it could take; it just has to show that none have been proposed.)

4. The state also argued that Elise couldn't use a religious defense to refute the “intent element” of the crimes with which she is charged.

Throughout the trial, even though Elise explained she was just practicing her religion and had absolutely no intention of breaking the law, her argument held no weight, the state asserted: 

“The legal definition of intent is often mistaken as the intent to commit a crime or break the law. In reality, intent solely requires the intention to engage in certain conduct, regardless of one’s knowledge of the law.”

In other words, it doesn’t matter that Elise had no intention of breaking the prostitution laws because what she did intend to do – in the parlance of the state, “purposefully exchange sexual acts for money” – did break the law. Overall, while it's unclear whether Elise’s case would have turned out differently had she been able to use a religious defense, what is clear is that she and her supporters maintain that the state violated her Constitutional rights by denying her the chance to even make this argument in front of the jury.

Elise's family says she plans to appeal her conviction and hopefully nullify the jury’s decision by arguing that the state violated the Establishment Clause of the U.S. Constitution – the section of the First Amendment that says the government can’t decide what is and is not religion, and says it cannot favor one religion over the other.

She's repeatedly vowed to fight this battle all the way to the U.S. Supreme Court, if necessary.