Muslim American women who wear the hijab, or Islamic headscarf, face religious discrimination in nearly every aspect of their public life. They even face it during arrest or incarceration. Law enforcement officials often force Muslim women to remove their hijab while in custody, which both degrades and humiliates them in the process. But prison policies that prohibit incarcerated Muslim women from wearing the hijab violate their right to free exercise of religion. Penal institutions should not prevent incarcerated Muslim women from wearing a hijab without compelling reasons, especially when such policies often arise out of religious discrimination. Courts must protect the right of incarcerated Muslim women to wear the hijab if they choose because, like all persons, they have the right to practice their religion free from discrimination, whether incarcerated or not. Under both the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), wearing the hijab at all times is indisputably a religious exercise. And any violation or forcible removal of a woman’s hijab in front of nonrelated males substantially burdens her religious exercise under both rational basis and compelling interest standards. This Note argues that prison regulations that prohibit incarcerated Muslim women from wearing the hijab undoubtedly violate their right to free exercise of religion, and courts should acknowledge this as a violation under both the First Amendment and RLUIPA.
Banning the Hijab in Prisons: Violations of Incarcerated Muslim Women's Right to Free Exercise of Religion,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol88/iss2/18