Monday, May 03, 2010

Khatib v. County of Orange (9th Cir. - May 5, 2010)

The federal Religious Land Use and Institutionalized Persons Act basically says that the state can't burden religious practices for people in an "institution" -- e.g., a prison. Souhair Khatib is a Muslim woman who was placed in a holding cell adjacent to the Orange County courthouse and ordered to remove her hijab (her headscarf). Does that violate the statute?

It first depends on whether the holding cell was an "institution" under the statute. The district court held it's not, and this morning, the Ninth Circuit affirms.

It's a meaningful case on its own right, but made even more so by Chief Judge Kozinski's dissent. Which is classic Kozinski. Virtually every paragraph includes a tongue-in-cheek reference. I'll share just some of them, with the caveat that they're better in context:

(1) The first paragraph: "Freud is reported to have said that sometimes a cigar is justa cigar. And a facility used for holding prisoners prior to trial is a pretrial detention facility. The Religious Land Use and Institutionalized Persons Act (RLUIPA) covers prisoners held in certain kinds of institutions—defined to include both correctional facilities (such as prisons and jails) and 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."

(2) The self-reference: "[T]he [majority] opinion overlooks the fact that the statute here has
its own rules of construction, codified at 42 U.S.C. § 2000cc-3. Among those rules is the following: “This chapter [meaning RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” Id. at § 2000cc-3(g) (emphasis added). Not every law that Congress passes has such a handy guide to interpretation; in fact, very few do. It seems to me that when Congress goes to the trouble of telling us how to construe a statute, and uses such phrases as “broad protection” and “the maximum extent permitted,” we need to pay close attention and do as Congress commands. The Supreme Court routinely relies on such express instructions. [Cited Quotation] And some of our nation’s hottest jurists have called for their more frequent use. See, e.g., Alex Kozinski, Should Reading Legislative History Be an Impeachable Offense?, 31 Suffolk U. L. Rev. 807, 819 (1998) (“[O]ne would hope that Congress would do the next best thing: instruct the courts how to resolve the close cases. This would not usurp the judicial function in any way; it would merely give judges instructions how to go about discovering the statute’s fine nuances.”)

(3) The cultural references: "Nor am I moved by the majority’s ex cathedra disquisition
about courthouse holding cells generally being “stark, barren, hard, and distinctly utilitarian.” Maj. at 6592. I suppose they’re quite different from your ordinary jail cell, which comes equipped with flat-screen TVs, mini-bars, iPod docking stations and Frette linens."

Let me add two other idiosyncratic points. First, if you've ever been in (or seen) the holding facility in O.C. at issue, I think you'd find Judge Kozinski's dissent even more persuasive. It's huge. Essentially like a mini-prison. This is no two-cell drunk tank. It's massive.

Second, the lineup is interesting. Judge Trott writes the majority opinion. Judge Kozinski dissents. And who joins Judge Trott? Judge Wardlaw.

Not what you might expect.