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9th Circuit: RLUIPA Not Applicable To Courthouse Holding Cell

By Mike Brodheim

A divided Ninth Circuit panel has held that a courthouse holding cell is not an "institution" as defined by the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., and hence that a Muslim woman's rights were not violated when, while detained in such a holding cell, she was forced to remove her "hijab" (headscarf) in public.

The facts of the case are simple enough: in June 2006, while awaiting disposition of her probation violation, Souhair Khatib was forced, against her Muslim beliefs and practice, to remove her hijab in the presence of strangers in an Orange County Superior Court holding cell. Moreover, it was undisputed that, for a Muslim woman, "Appearing in the presence of male non-family members without a hijab is a serious breach of faith and a deeply humiliating and defining experience."

What remained disputed was only whether RLUIPA, which prohibits government from imposing "a substantial burden on the religious exercise of a person residing in or confined to an institution," as defined in Section 1997 of the Prison Litigation Reform Act (PLRA), applies in the context of a courthouse holding cell.

Both the majority and the dissent agreed that Section 1997 of the PLRA defines "institution" to include correctional facilities (such as prisons or jails) as well as pretrial detention facilities. They parted company on whether the latter includes a courthouse holding cell. To the majority, the text and purpose of the statute precluded such a finding. To the dissent, there simply is "no plausible reason why a facility which has a permanent staff of 20 deputies and handles thousands of inmates a week ought to be exempted from RLUIPA."

See: Khatib v. County of Orange, 622 F. 3d 1074 (9th Cir. 2010).

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Related legal case

Khatib v. County of Orange