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Federal appeals court allows woman to sue over forced removal of headscarf

By Julia Zebley

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] reinstated [opinion, PDF] a lawsuit on Tuesday, allowing a Muslim woman to sue several government parties for forcing her to remove her religious headscarf [JURIST news archive] while detained in a holding cell. Souhair Khatib argued that being forced to remove her hijab was a violation of her religious rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) [text], which prohibits governments from imposing regulations upon inmates that engender religious discrimination. The US District Court for the Central District of California [official website] initially ruled [opinion, PDF] that a holding cell is not a "prison, jail or pretrial detention facility" for protection under the law. The US Court of Appeals for the Ninth Circuit upheld the ruling [JURIST report] in a 2-1 decision, but Chief Judge Alex Kozinski filed a brief order [text, PDF] stating he would take the matter to the full panel. The reinstatement opinion declared that this "improperly merge[d] two distinct inquiries: whether the facility is an 'institution,' and the government's burden as to accommodation."

The County's argument reduces to the claim that because the application of RLUIPA to the courthouse holding facility is impractical and inconvenient the facility must not fall within the Act's definition of "institution." But this approach conflates RLUIPA's coverage and accommodation prongs. Congress certainly had real-world consequences in mind when it enacted RLUIPA, and the text of the statute indicates that it did not intend to minimize the serious security and other management interests of institutions. It chose, however, to deal with accommodation issues as a second step in the analysis, not by categorically excluding facilities like the Santa Ana Courthouse holding facility from RLUIPA.

The court's decision was unanimous. However, they stated the opinion should not be read broadly, noting there are unique conditions to all detention facilities and courthouses, and this nature of violation should be decided case-by-case. Christina Abraham [personal website], Civil Rights Director, Council on American-Islamic Relations (CAIR) - Illinois [advocacy website], wrote on the case in Ninth Circuit's Khatib decision undermines free exercise of religion [JURIST op-ed].

The American Civil Liberties Union of Georgia (ACLUGA) [advocacy website] filed a lawsuit in December on behalf of a Muslim woman who was arrested for refusing to remove her hijab in court, and ordered to serve 10 days in jail for contempt[JURIST reports] in 2008. In May 2010, a judge in the US District Court for the Eastern District of Michigan [official website] dismissed [JURIST report] a lawsuit against a Michigan judge who ordered a Muslim woman to remove her headscarf in court. The suit [complaint, PDF] was filed in August by CAIR [advocacy website] on behalf of Raneen Albaghdady against Judge William Callahan of the Wayne County Circuit Court. Callahan has a policy against hats in his courtroom, and when he asked Albaghdady to remove her headscarf, or hijab, she did so without objection.

Full post as published by JURIST - The Paper Chase on March 16, 2011 (boomark / email).