9th Circuit Says RLUIPA Does Not Cover Court House Holding Cell

In Khatib v. County of Orange, (9th Cir., May 3, 2010), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, concluded that a court house holding cell is not covered by the Religious Land Use and Institutionalized Persons Act. A majority, therefore, upheld the dismissal of a RLUIPA lawsuit filed by a Muslim woman who, on two occasions in a single day when the court was dealing with her probation violation, was required to remove her hijab (headscarf) for security reasons. Examining the legislative history of RLUIPA, the majority concluded that the court's holding area is neither "a jail, prison or other correctional facility," nor a pre-trial detention facility. Judge Kozinski dissented, beginning his 8-page opinion as follows:

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. [RLUIPA] ... covers ... 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. Everything below is unnecessary and you could easily skip it.

Yesterday's San Francisco Appeal reports on the decision.