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Religious Law

Kozinski’s ‘Ornery’ Panel Dissent Carries the Day in En Banc Headscarf Ruling

Posted Mar 16, 2011 10:20 AM CDT
By Debra Cassens Weiss

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A federal appeals court has reinstated a lawsuit by a Muslim woman forced to remove her scarf in a courthouse holding cell in California.

The en banc 9th U.S. Circuit Court of Appeals based in San Francisco said the federal law protecting prisoners’ religious rights also applies to courthouse detentions, according to the San Francisco Chronicle, the Orange County Register and the Recorder. The ruling (PDF) allows Souhair Khatib to continue her suit, but she still could lose if the government persuades the courts it was acting in the least restrictive way to carry out a compelling security need.

The en banc opinion sides with Chief Judge Alex Kozinski, who wrote “an ornery dissent” to an earlier ruling by a three-judge panel, the Recorder says. The panel majority had ruled last year that courthouse holding cells don't qualify as “pretrial detention facilities” covered by the Religious Land Use and Institutionalized Persons Act.

Kozinski’s dissent began this way: “Sometimes a cigar is just a cigar. And a facility for holding prisoners prior to trial is a pretrial detention facility.” Further in the opinion, he said: "What would [Congress] have had to say to make sure that the Orange County Court's holding facility is covered? Would they have to mention it by name and ZIP code?"

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