The 9th Circuit's decision to rehear our case addressing the religious liberty of a Muslim woman forced by Orange County Sheriff's Department officials to remove her headscarf in front of strangers is a most welcome development.
We seemingly lost the case back in May, when a panel from this very same appellate court ruled, by a 2-1 vote, that the courthouse holding facility where our client was held did not meet the standard as defined by the Religious Land Use and Institutionalized Persons Act.
That had us deeply worried about the impact on religious freedom. By that logic, the county would be required by law to protect a person's religious rights while detained in a jail, but not when the same person was transported to and held in the holding facility of a courthouse before and after making court appearances. This would be an absurd result.
The facts: In 2006, Souhair 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 7.5 hours, county sheriff's deputies, who staff the facility, forced Khatib to remove her headscarf due to so-called security issues. A devout Muslim who incorporates the use of a hijab as part of her religious practice, she believes she may not be uncovered in front of men who are not related to her. 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 deeply shaken by the experience, describing it as defiling and humiliating.
The 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. If the feds and the state can accommodate the religious liberties of detainees within the system, there's no reason Orange County can't do the same.
As Judge Alex Kozinski noted in his dissenting opinion back in May:
Freud is reported to have said that sometimes a cigar is just a cigar. And a facility used for holding prisoners prior to trial is a pretrial detention facility. The Religious Land Use and Institutionalized Persons Act (RLUIPA) covers prisoners held in certain kinds of institutions'''defined to include both correctional facilities (such as prisons and jails) and pretrial detention facilities. Souhair Khatib was held in a facility where prisoners are routinely detained awaiting trial and other court appearances. She was therefore held in a facility covered by RLUIPA and is entitled to its protections. This pretty much sums up the case for me.
For us, too.
The court's decision to rehear the case before an 11-judge panel is a significant turning point. Our suit remains the first of its kind to deal with a courthouse holding facility. We know the outcome can affect a wide range of people struggling to maintain their religious rights. We look forward to the issue receiving the full hearing it deserves.