One Step Closer to a 'More Perfect Union’

In the midst of a national debate over the rights of Muslims to equal protection of the law, the 9th U.S. Circuit Court of Appeals has extended federal protection to the wearing of a religious headscarf while in pretrial detention.

Souhair Khatib, a practicing Muslim, in accordance with her religious beliefs, wears a hijab, or headscarf, covering her hair and neck when in public. Khatib and her husband pled guilty in Orange County Superior Court to a misdemeanor violation of California welfare law. The Khatibs were sentenced to three years of probation and ordered to complete 30 days of community service.

Two days before the deadline for completing their community service, Khatib and her husband appeared in court to seek an extension. The court revoked Khatib's probation and ordered her taken into custody. She was handcuffed and taken to the holding facility at a Santa Ana courthouse.

At the booking counter, a male officer ordered Khatib to hand over her belongings and remove her headscarf. According to her lawsuit, having her head uncovered in public, especially in front of men outside of her immediate family, is a "serious breach of Khatib's faith and a deeply humiliating and defiling experience."

Weeping, Khatib explained that her religious beliefs forbade her from taking off her headscarf and pleaded with the officers to allow her to keep it on. She was warned that the male officers would remove the headscarf for her if she did not voluntarily do so. Wanting to avoid being touched by the male officers - another violation of her religious beliefs - Khatib reluctantly complied.

She spent the majority of the day in a holding cell in view of male officers and inmates. Experiencing "severe discomfort," "distress," and "humiliat[ion]," Khatib attempted to cover herself by pulling her knees into her chest and covering her head with a vest she was wearing. At a hearing that afternoon, the court reinstated Khatib's probation and granted an extension of time to complete community service.

Khatib filed a complaint against the county of Orange, the sheriff, and courthouse officers alleging, among other things, violations of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) enacted by Congress to "protect...institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion."

The district court dismissed Khatib's RLUIPA claims on the ground that the courthouse holding facility was not a covered institution under the Act, because an inmate's stay in a courthouse holding facility is generally temporary and transitory and constant movement within holding facilities makes "unlimited exercise of religious and expressive freedoms impractical. Staff at such facilities do not have the luxuries that make such freedoms feasible in longer term institutions, to which RLUIPA plainly applies."

On March 15, sitting en banc, the entire panel of 11 9th Circuit judges reversed the district court and held that RLUIPA did apply. (Souhair Khatib v. County of Orange, 2011 DJDAR 3813)).

RLUIPA prohibits state and local governments from imposing "a substantial burden on the religious exercise of a person residing in or confined to an institution" unless the government demonstrates that imposing that burden "is the least restrictive means" of furthering "a compelling governmental interest." The term "institution" includes "a jail, prison, or other correctional facility" and "a pretrial detention facility."

Under the ordinary, common meaning of the terms, the court held that the holding facility falls within the definitions of "pretrial detention facility." According to a House conference report cited in enacting RLUIPA, "pretrial detention facility" is a "generic term...intended to cover any institution or facility which confines detainees who are awaiting or participating in criminal trials." The court also found that the term "jail or prison or other correctional facility" is similarly broad and encompasses "those institutions in which persons are wholly or partially confined or housed as part of a criminal sanction or process."

The United States, represented by the Department of Justice, appeared in the appeal as an amicus curiae and, like Khatib, urged the court to hold that the holding facility at issue meets the definition of both a "pretrial detention facility" and a "jail." In its brief, the United States underscored that "Congress intended the term 'institution' to have a broad and expansive meaning that easily encompasses the courthouse holding facility at issue in this case."

The case was remanded to the district court to address whether the burden the county imposed on Khatib was the least restrictive means of furthering a compelling government interest.

Judge Ronald M. Gould agreed with the unanimous opinion, but also wrote separately to emphasize that if RLUIPA does not apply, "a Muslim woman in custody loses an important statutory protection for her religious preference to wear a hijab, a traditional headscarf - a preference that Congress aimed to protect." "And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy."

According to Judge Gould, "[d]oubtless Congress intended to safeguard the permissible religious observance of powerless persons incarcerated by the state. Congress heard testimony describing government facilities that regularly denied individuals the right to exercise their religion. That testimony included many examples of government facilities that refused to accommodate religious practices, like wearing religious headwear or eating a kosher diet." Judge Gould emphasized that a "Muslim woman who must appear before strange men she doesn't know, with her hair and neck uncovered in a violation of her religious beliefs, may feel shame and distress. This is precisely the kind of 'mischief' RLUIPA was intended to remedy."

Protecting religious freedom in United States, for every religion, be it one embraced by a majority of Americans or one practiced by a minority, is not a "luxury." It is a fundamental ingredient in our constitutional democracy. Every time individuals like Souhair Khatib stand up for the right to practice her religion and every time a court upholds that right, we come closer to being a "more perfect union."