Legal Commentary

Religious Accommodations in Court Holding Cells, Islamic Headscarves, and Statutory Construction

By Eugene Volokh

A unanimous 11-member en banc panel of the Ninth Circuit has just reversed a decision that I blogged about last year, and held that the federal Religious Land Use and Institutionalized Persons Act secures a limited right to religious accommodations in court holding cells, and not just in prisons and jails. (My former boss, Chief Judge Alex Kozinski, dissented from that earlier decision; his conclusion has now carried the day before the en banc panel.) Here is an excerpt explaining the issue:

Recognizing the significance of religious freedom in all aspects of life, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (?RLUIPA? or ?the Act?) to ?protect[ ] institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government?s permission and accommodation for exercise of their religion.? Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). RLUIPA prohibits state and local governments from imposing ?a substantial burden on the religious exercise of a person residing in or confined to an institution? unless the government demonstrates that imposing that burden ?is the least restrictive means? of furthering ?a compelling governmental interest.? 42 U.S.C. § 2000cc-1(a). The term ?institution? includes ?a jail, prison, or other correctional facility? and ?a pretrial detention facility.? 42 U.S.C. § 1997(1)(B). We consider whether the Orange County Santa Ana Courthouse holding facility, where every day hundreds of individuals are detained in connection with court proceedings, is an ?institution? as defined by RLUIPA. We conclude that this facility is such an ?institution? under RLUIPA, and thus the Act covers persons detained at the facility.

Our interpretation of the statute is guided by three principles. To begin, the focus of our inquiry is narrow and preliminary. The only question before us is whether Orange County?s facility is an ?institution? under RLUIPA; other courthouse or detention facilities have unique characteristics that warrant individualized review. Next, we are mindful that the issue of accommodation ? whether the substantial burden on religious exercise is ?the least restrictive means of furthering [a] compelling governmental interest? ? is distinct from the threshold issue of whether the facility is a covered ?institution? in the first place. 42 U.S.C. § 2000cc-1(a). The accommodation question involves serious practical considerations regarding institutional safety, security, and the feasibility of accommodation that are not before us now. Finally, Congress has explicitly directed us to resolve any ambiguities in RLUIPA ?in favor of a broad protection of religious exercise, to the maximum extent permitted.? 42 U.S.C. § 2000cc-3(g) (emphasis added).

Thanks to How Appealing for the pointer.

Full post as published by The Volokh Conspiracy on March 15, 2011 (boomark / email).