Tuesday, September 26, 2023
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Muslim Woman Loses Hijab Removal Ruling

CN) - A split 9th Circuit panel rejected the claims of a Muslim woman who said she suffered a "deeply humiliating and defiling experience" when she was forced to remove her headscarf for security reasons at the Orange County Superior Courthouse.

Souhair Khatib sued Orange County and some of its officials for allegedly violating her religious freedom when she was forced to remove her "hijab," or headscarf, in public on two occasions while being held at the courthouse for a probation violation.

Khatib and her husband were held in a pretrial holding cell for violating their probation, which they received for a welfare misdemeanor to which they each pleaded guilty.

Khatib told the district court, "Appearing in the presence of male non-family members without a hijab is a serious breach of faith and a deeply humiliating and defiling experience."

The district court dismissed Khatib's religious freedom claim, ruling that a courthouse holding cell is not an "institution" as defined by the Religious Land Use and Institutionalized Persons Act. The Act protects the right of institutionalized people to practice religion.

On appeal, the 2-1 panel in Pasadena agreed with the district court's dismissal of the claims. "No one can persuasively argue that a person in a courthouse holding cell is a resident of that facility," Judge Stephen Trott wrote for the majority, adding that the law was enacted to protect people who live in state institutions.

"Congress' decision to apply the (Prisoners' Litigation Reform Act's) definition of 'institution' into the RLUIPA indicates Congress did not intend that the phrase 'pretrial detention facility' apply to courthouse holding facilities," Trott wrote.

In a dissenting opinion, Chief Judge Alex Kozinski wrote, "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."

Khatib was "held in a facility covered by the RLUIPA and is entitled to its protections. This pretty much sums up the case for me," Kozinski wrote.

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