Khatib

Opinion by Judge McKEOWN; Concurrence by Judge GOULD.

OPINION

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 , 125 S.Ct. 2113 , 161 L.Ed.2d 1020 (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-l(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”…

concurring:

I concur. I agree with Judge McKeown’s opinion that the Orange County Santa Ana Courthouse holding facility is a “jail, prison or other correctional facility,” or “a pretrial detention facility,” within the meaning of 42 U.S.C. § 1997 (1). And I agree that if RLUIPA’s statutory coverage is invoked, then the state still has the opportunity to justify restrictions that further a compelling governmental interest using the least restrictive means and that technically that issue is not now before us. 42 U.S.C.2000cc-l(a). However, I write separately to emphasize an additional factor supporting our decision that RLUIPA covers the Santa Ana facility.

In deciding the issue of coverage, we should not lose sight of the reality that if RLUIPA does not apply, a Muslim woman in custody loses an important statutory protection for her religious preference to wear a hijab, a traditional headscarf — a preference that Congress aimed to protect. It is commonplace, and has been for centuries, to interpret ambiguities in remedial statutes by considering three points: “the old law, the mischief, and the remedy.” 1 William Blaekstone, Commentaries *87. We are to consider the preexisting…