Legal Commentary

Ninth Circuit En Banc Panel Will Rehear Case Involving Religious Accommodations of Islamic Headscarves in Court Holding Cells

By Eugene Volokh

This is the case I blogged about in May. The 2?1 panel opinion (Khatib v. County of Orange), in which Judges Trott and Wardlaw were in the majority and in which Chief Judge Kozinski dissented, is here; as I mentioned at the time, ?The dissent is characteristically colorful, and in my view quite persuasive.? 

Note that the case turns on how courts should interpret the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) ? in particular, whether the statute, which covers ?pretrial detention facilities,? should be read to apply to courthouse holding facilities. The case does not turn on what the rule should be under the Free Exercise Clause. The dispute is therefore not whether the federal judiciary should trump state executive decisions on this point, but rather whether the federal legislature and executive branch did trump state executive decisions. (I don?t think there?s any controversy in this case about Congressional power to so trump state executive decisions when it comes to state facilities that receive federal funding.)

Thanks to How Appealing for the pointer.

Full post as published by The Volokh Conspiracy on September 13, 2010 (boomark / email).