An en banc panel of the United States Court of Appeals for the Ninth Circuit today ruled unanimously that a lawsuit by a Muslim woman forced by Orange County Sheriff's Department officials to remove her headscarf in front of strangers is headed back to court.
"We are immensely pleased with today's result because this means that Souhair Khatib will finally have her day in court and the County will have to explain why it had no alternative but to force her to violate her deeply held religious beliefs," said Mark Rosenbaum, Chief Counsel for the ACLU Foundation of Southern California, who argued the case before the en banc panel.
In 2006, Khatib, then a 33-year-old U.S. citizen, twice appeared at the Santa Ana Courthouse. While held in the courthouse holding facility for about 7 ½ hours, male county sheriff’s deputies, who staff the facility, ordered Khatib to remove her headscarf. A devout Muslim who incorporates the use of a hijab as part of her religious practice, Khatib believes she may not be uncovered in front of men who are not in her family. But in the crowded holding facility of that courthouse, that’s precisely what she was forced to do, her pleas for understanding falling on deaf ears. Khatib was visibly shaken by the experience, describing it as defiling and humiliating.
Khatib, represented by the ACLU Foundation of Southern California, who is co-counsel on the case with Troutman Sanders LLP, filed a lawsuit against the County of Orange in September 2007.
In July 2008, the trial court dismissed the suit after holding that the courthouse holding facility where Khatib was held was not covered by the Religious Land Use and Institutionalized Persons Act, a federal law that provides expansive protection for the religious freedom of persons confined to a variety of institutions.
In May 2010, a three-judge panel of the Ninth Circuit, by a 2-1 vote, agreed with the trial court’s ruling.
But today the Ninth Circuit's en banc panel found that the holding facility at the Orange County Santa Ana Courthouse qualifies as an "institution" under RLUIPA. This is the first case in the nation to apply RLUIPA to courthouse facilities and affirms the principle that religious freedom cannot automatically end at the courthouse door.
"We sought review by an eleven-member panel of the Ninth Circuit because we were deeply worried about the impact on religious freedom," said Hector Villagra, executive director of the ACLU Foundation of Southern California. Today's ruling recognizes the absurd result of requiring Orange County to protect a person's religious rights while detained in a jail, but not when the same person is transported to and held in the holding facility of a courthouse before and after making court appearances."
The Orange County sheriff's department has no policy accommodating religious clothing. This is surprising, considering the U.S. Department of Justice not only has a policy but expressly permits Muslim women to wear their head coverings as part of their religious practice. So does the state department of corrections, as well as the County of San Bernardino.
"If all these entities can safely accommodate the religious liberties of detainees within the system, there’s no reason Orange County cannot do the same," said Becki Kieffer, an attorney with Troutman Sanders LLP. They all face similar security concerns, and they are all subject to the same legal standard."

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