The Jurist, Christina Abraham: Ninth Circuit's Khatib decision undermines free exercise of religion

Published on May 8th

In a feat of apologetic acrobatics, the Ninth Circuit Court of Appeals rendered a decision [PDF file] in Khatib v. County of Orange affirming a district court’s dismissal of a complaint under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The decision uses faulty legal reasoning to arrive at a conclusion that dangerously undermines the well-established principle that the government may not unnecessarily infringe upon an individual’s right to exercise his or her religion.

Souhair Khatib sued the County of Orange after she had been held in the county court’s holding facility from 9am to 4:30pm and was forced to remove her religious headscarf (hijab) while in the presence of men – a violation of her sincerely held religious beliefs. RLUIPA prohibits the government from imposing a substantial burden on the religious exercise of a person residing in or confined to an institution. In Khatib, the case centered on whether the holding facility at the Orange County Superior Court falls within the meaning of “institution” under RLUIPA. The majority on the Ninth Circuit panel held that it did not. In so doing, it ignored the statute’s clear language and intent.

RLUIPA defines “institution” as “any facility or institution…(B) which is…(ii) a jail, prison, or other correctional facility” or “(ii) a pretrial detention facility.” The majority on the Ninth Circuit panel ultimately held that the court holding facility didn’t constitute a pretrial detention facility because detainees could not “reside” there. However, the clear language of RLUIPA states in its opening provision that the statute is intended to protect any person “residing in or confined to an institution.” As Chief Judge Kozinki put it in his dissenting opinion, “If Congress had meant to include only institutions with beds, there would have been no point in adding ‘or confined to’ following residing.” In fact, nowhere in RLUIPA does Congress indicate a residency requirement for the statute to apply. What Congress did do, however, was expressly instruct adjudicators to interpret the statute “in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” That clearly did not happen here.

Chief Judge Kozinski said it best in his dissent when he stated, “Can we honestly say that a mammoth facility in the bowels of the Santa Ana courthouse, whose main purpose is to hold inmates while awaiting trial, cannot possibly be a pretrial detention facility?” The answer is no, we cannot honestly say that. The decision rendered in the Ninth Circuit was not honest at all. It was, at best, a shallow legal interpretation that needlessly permitted a government-run institution to impair the religious exercise of an individual entitled to that right. Unless successfully appealed, this decision will set a crack in what is otherwise a solid body of jurisprudence designed to uphold one of this nation’s most dearly-held rights.

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