NINTH CIRCUIT REINSTATES HIJAB SUIT

The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) prevents governmental bodies from placing a substantial burden on an individual’s religious activity by its land use policy or in institutions including jails and pretrial detention centers built with Federal money.

The statute reads in pertinent part:

(1) GENERAL RULE- No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution–
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

Souhair Khatib and her husband plead guilty to misdemeanor welfare fraud in Orange County, California. They were sentenced to three years probation and thirty days of community service. As the period to complete the community service was ending, they went back to court to request an extension of time. For an unstated reason the judge was angry and revoked their probation. They were immediately incarcerated in the Santa Ana Courthouse’s holding facility. Khatib, a practicing Muslim, was forced to remove her hijab. This caused her considerable anxiety, aggravation, and embarrassment. Later in the day the judge called Khatib back into the courtroom, reinstated her probation and extended the time to complete the community service.

She sued in Federal Court. Orange County moved to dismiss the case on the grounds that the holding facility was not an institution under the RLUIPA. The District Court granted the motion and dismissed the case. The three judge appellate panel upheld the dismissal but an en banc decision unanimously reinstated the matter.

The court held that the holding facility was both a pretrial detention center and a jail. Since neither “pretrial detention center” or “jail” is defined in the statute the Court looked to the ordinary and common meanings of the terms. The court held that pretrial detention is simply the “holding of a defendant before trial on criminal charges.” Since the holding facility confines people waiting for court appearance and for trial it meets the definition. The court quotes Webster’s as defining a jail as a “building for the confinement of persons held in lawful custody (as for minor offenses or some future judicial proceeding).” Orange County describes the holding facility as a “secure detention facility . . . for the confinement of persons solely for the purpose of a court appearance.” Using this description there is no question that the facility is a jail.

Finding that the facility is an institution under the RLUIPA the Ninth Circuit remanded the matter to the District Court with orders to reinstate the action. But the next question for the court will be does prohibiting the wearing of the hijab promote a compelling government interest. Among the issues will be does the hijab create a security problem? Can it be used in an assault or a suicide attempt? But we can note that both Federal and state prisons allow women to wear hijabs. The county will argue that the temporary nature confinement in the holding facility creates problems not found in prisons.