A federal appeals court unanimously reinstated a lawsuit Tuesday filed by a Muslim woman who accused Southern California jailers of violating her religious freedom when they ordered her to take off her head scarf in a courthouse holding cell. An 11-judge panel of the 9th U.S. Circuit Court of Appeals also said plaintiff Souhair Khatib had the right to wear the scarf unless jailers can show it was a security risk.
Khatib filed the lawsuit in 2007 against Orange County. She had been jailed for several hours in November 2006 after a judge revoked her probation for a misdemeanor welfare fraud conviction. A trial court judge and a three-judge appeals court panel previously dismissed the lawsuit, saying holding cells aren’t covered by a federal law protecting the religious practices of prisoners. They held it was impractical in transitory settings such as a holding cell to honor religious practices normally allowed in more permanent institutions such as prisons.
But the 9th Circuit judges rejected that argument while allowing the case to proceed. The court did say the county can still argue that security concerns required Khatib to remove her head scarf, if it can prove the order “was the least restrictive means of furthering a compelling government interest.”
Khatib and her husband had appeared in Orange County Superior Court to ask for an extension of a deadline to complete community service, which was a requirement of their probation. They were jailed in a cell adjacent to the courthouse. During booking, jailers ordered a tearful Khatib to remove her head scarf, and she spent the rest of her time in the cell covering her head with a vest.