That's the unanimous ruling that an 11-member en banc panel of the U.S. Court of Appeals for the 9th Circuit issued Wednesday in Khatib v. County of Orange.
The principal opinion, by 9th Circuit Judge M. Margaret McKeown (below left), related that when in public the plaintiff, Souhair Khatib, wears a hijab that covers her hair and neck, in accord with her Muslim beliefs. Her troubles began when she and her husband appeared in a court in Orange County, in southern California, to seek an extension on community service they were supposed to perform following their plea to misdemeanor violation of state welfare laws. Far from granting the request, authorities took the couple into custody and seized Khatib's hijab. Judge McKeown described what happened next:
Weeping, Khatib explained that her religious beliefs forbade her from taking off her headscarf and pleaded with the officers to allow her to keep it on. Khatib was warned that the male officers would remove the headscarf for her if she did not voluntarily do so. Wanting to avoid being touched by the male officers—another violation of her religious beliefs—Khatib reluctantly complied.At issue before the 9th Circuit was the Religious Land Use and Institutionalized Persons Act of 2000, which, as McKeown wrote,
Khatib spent the majority of the day in a holding cell in view of male officers and inmates. Experiencing 'severe discomfort,' 'distress,' and 'humiliat[ion],' Khatib attempted to cover herself by pulling her knees into her chest and covering her head with a vest she was wearing. At a hearing that afternoon, the court reinstated Khatib’s probation and provided an extension of time to complete community service.
prohibits state and local governments from imposing 'a substantial burden on the religious exercise of a person residing in or confined to an institution.'
Reversing an earlier 2-1 panel decision and rejecting an argument put forward by Orange County, California -- and siding with the U.S. Department of Justice, which entered the case on behalf of Khatib -- the 9th Circuit held that the county courthouse holding facility was an "institution" for purposes of the Act. Thus it remanded the case for determination of whether Khatib's religious freedom had been impermissibly burdened.
Save for the statement of facts quoted above, McKeown's opinion was dispassionate.
But a concurrence by 9th Circuit Judge Ronald Gould indicated the human considerations underlying the circuit's decision. "A Muslim woman who must appear before strange men she doesn’t know, with her hair and neck uncovered in a violationof her religious beliefs, may feel shame and distress," he wrote, adding: "A recognition of this very real harm helps inform our judgment on the scope of covered institutions."
The Khatib decision, when contrasted not only with U.S. incidents described in the final paragraph here, but also with actions in France and elsewhere abroad, about which we've written in posts available here, exposes the gulf in understandings of this issue.