dissenting:
Freud is reported to have said that sometimes a cigar is just a cigar. And a facility used for holding prisoners prior to trial is a pretrial detention facility. The Religious Land Use and Institutionalized Persons Act (RLUIPA) covers prisoners *718held in certain kinds of institutions — defined to include both correctional facilities (such as prisons and jails) and pretrial detention facilities. Souhair Khatib was held in a facility where prisoners are routinely detained awaiting trial and other court appearances. She was therefore held in a facility covered by RLUIPA and is entitled to its protections. This pretty much sums up the case for me. Everything below is unnecessary and you could easily skip it.
The majority takes a convoluted path to reach the contrary result, but its analysis just proves how wrong they are. For starters, the opinion overlooks the fact that the statute here has its own rules of construction, codified at 42 U.S.C. § 2000cc-3. Among those rules is the following: “This chapter [meaning RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” Id. at § 2000cc-3(g) (emphasis added). Not every law that Congress passes has such a handy guide to interpretation; in fact, very few do. It seems to me that when Congress goes to the trouble of telling us how to construe a statute, and uses such phrases as “broad protection” and “the maximum extent permitted,” we need to pay close attention and do as Congress commands. The Supreme Court routinely relies on such express instructions. See, e.g., Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 497-98, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (relying directly on the “express admonition that RICO is to ‘be liberally construed to effectuate its remedial purposes’ ”). And some of our nation’s hottest jurists have called for their more frequent use. See, e.g., Alex Kozinski, Should Reading Legislative History Be an Impeachable Offense?, 31 Suffolk U.L.Rev. 807, 819 (1998) (“[0]ne would hope that Congress would do the next best thing: instruct the courts how to resolve the close cases. This would not usurp the judicial function in any way; it would merely give judges instructions how to go about discovering the statute’s fíne nuances.” (citing Hearings Before the Joint Comm, on the Organization of Cong., 103d Cong., 1st Sess. 81-82 (1993) (statement of Hon. Patricia M. Wald, Judge, D.C. Circuit Court of Appeals))).
The question then is not the usual one when we interpret statutes, namely what is the most plausible construction. Instead, we must ask the following question: Stretching the term “pretrial detention facility” to its maximum limit, does the place where Khatib was incarcerated for several hours possibly fit within that definition?
As if the answer isn’t perfectly clear, let’s take a stroll through the record and, see what we find. In the same document that the majority approves of at page 715, note 1 (namely the 2006-2007 Orange County Grand Jury Report), we find courthouse holding facilities described as follows:
COURT HOLDING FACILITY is a secure detention facility located within a court building used for the confinement of persons solely for the purpose of a court appearance for a period not exceeding 12 hours.
Grand Jury Report at 1. I don’t need to tug very hard at the corners of “pretrial detention facility” to get it to include a facility fitting this description. But there’s more, right in the middle of Orange County’s brief:
The court holding facility is staffed with only[sic] 20 sworn deputies, who are responsible for the daily comings and goings of approximately 600 inmates from the various Orange County Jails. (ER 98.) In addition to inmates from the Orange County Jails, the court holding *719facility temporarily holds custody of a significant number of persons taken into custody at the courthouse every day. (ER 208.) Moreover, the sworn deputies are responsible for ensuring that the persons in the court holding facility make it through a “labyrinth of subbasements, tunnel[s], secured elevators, and holding cells ... one-by-one ----” (ER 98.)
Answering Brief at 22-33 (footnote omitted) (alterations in original).
It’s pretty clear from this description that the facility in the Santa Ana Courthouse isn’t a makeshift cell in the corner of the courtroom, designed to hold the occasional unruly drunk while he waits for the judge, as the majority posits at page 715-16 of the opinion. The Santa Ana facility is a full-fledged jail with its own permanent staff, schedule and procedures. While the inmates don’t sleep there, they are treated pretty much the same as in all correctional facilities, “segregated by race, gang affiliation, criminal level of intensity, and other characteristics to prevent trouble.” Grand Jury Report at 4. Note, also, that aside from the central facility itself, there are a number of other secure areas in the courthouse, including “holding cells” dispersed throughout the building. Those holding cells may not themselves be facilities, and thus not covered by RLUIPA, but surely the central facility itself — where hundreds of inmates are detained every day while waiting to go to court — is a pretrial detention facility.
Is this the best interpretation of the statute? I think so, but it doesn’t have to be. Applying RLUIPA’s rule of generous construction, we must ask ourselves whether this is a permissible construction if we read the term “to the maximum extent permitted” so as to achieve a “broad protection of religious exercise.” Can we honestly say that a mammoth facility in the bowels of the Santa Ana courthouse, whose main purpose is to hold inmates while awaiting trial, cannot possibly be a pretrial detention facility? Is that really like calling a fish a fowl or an elephant a donkey?
But there’s more. Just think about what Congress was trying to do when it crafted the definition of institution in section 1997:
(1) The term “institution” means any facility or institution ...
(B) which is ...
(ii) a jail, prison, or other correctional facility;
(iii) a pretrial detention facility;
(iv) for juveniles—
(I) held awaiting trial;
(II) residing in such facility or institution for purposes of receiving care or treatment; or
(III) residing for any State purpose in such facility or institution....
(v) providing skilled nursing, intermediate or long-term care, or custodial or residential care.
42 U.S.C. § 1997. Looking at subsections (ii) and (iii), we see that Congress divided the universe of institutions holding adults caught up in the criminal justice system into two parts: those whose inmates are incarcerated after they’ve been found guilty; and those whose inmates are incarcerated while awaiting an adjudication of guilt. Congress chose to define facilities in terms of the kinds of inmate they would hold rather than in terms of their physical characteristics such as whether they have beds or bars on the windows. It included all facilities for convicted inmates and all facilities for inmates who are still presumptively innocent, thereby covering the entire universe of facilities holding people *720who become enmeshed in the criminal justice system. It’s hard to imagine how Congress could have spoken more broadly. What would they have had to say to make sure that the Orange County Court’s holding facility is covered? Would they have had to mention it by name and zip code?
. The majority’s contrary arguments only prove my point. The suggestion that “[t]he term ‘pretrial detention facility’ is not ambiguous,” maj. at 716, and includes only facilities where inmates spend the night, is wrong on its face. The opening provision in the RLUIPA states: “No government shall impose a substantial burden on the religious exercise of a person residing in or confined, to an institution....” 42 U.S.C. § 2000ec-1(a) (emphasis added). If Congress had meant to include only institutions with beds, there would have been no point in adding “or confined to” following “residing in,” would there? More fundamentally, where in RLUIPA does Congress include a residency requirement— one so clear that it absolutely excludes' all facilities that don’t have beds? I note that elsewhere in the same definition section, the statute refers repeatedly to residency, so Congress surely knew how to say so when it meant to. See, e.g., id. at § 1997(1)(B)(iv)(II), (iv)(III), (v). Instead of stretching the statute to its maximum limit, as Congress said we should, the majority pulls out of thin air requirements that constrict RLUIPA’s plain language. Is this what my colleagues see as “broad protection of religious exercise, to the maximum extent permitted by the terms of’ the statute? If so, I’d hate to see what a grudging interpretation looks like.
Nor am I moved by the majority’s ex cathedra disquisition about courthouse holding cells generally being “stark, barren, hard, and distinctly utilitarian.” Maj. at 715. I suppose they’re quite different from your ordinary jail cell, which comes equipped with flat-screen TVs, mini-bars, iPod docking stations and Frette linens. None of this is in the record, nor is the majority’s speculation that “[ojnce inside the courthouse, the prisoner is no longer in a pretrial detention facility, but in the institution of the courthouse itself as part of the judicial branch of government, not the executive.” Id. at 716. That the court and the detention facility are housed under the same roof is neither here nor there; it’s quite common to have executive agencies housed inside federal courthouses, yet surely no one suggests that the offices of (say) the United States Attorney are “part of the judicial branch of government, not the executive.” The grand jury report tells us that Orange County’s courthouse holding facilities are in fact under the jurisdiction of the Orange County Sheriffs Department, not the court. This is confirmed by the Sheriffs website, which tells us that its “Court Operations Division is committed to protect and serve the judiciary and the public by ensuring a safe environment in the Superior Court of Orange County,” which includes “[sjtaffing all courthouse holding facilities.” Orange County Sheriffs Department, Court Operations Division, http://www.ocsd.org/index. php? option=com_content&view=articlefe id=130&Itemid=85 (last visited April 22, 2010). This argument, which the majority comes up with on its own, just shows the folly of writing an opinion based on judicial intuition rather than the record and arguments presented by the parties.
But it don’t matter anyhow. Even if we assume, contrary to fact and common sense, that the courthouse holding facilities in Orange County are entirely under the jurisdiction of the Superior Court, so what? RLUIPA doesn’t exempt facilities operated by courts. The holding facilities are separate units within each courthouse, designated for a specific purpose — holding *721inmates while they await court appearances. It doesn’t matter who runs them; there’s no judicial immunity for RLUIPA. The facilities are covered by the statute and who operates them makes no difference.
In a creative effort to find support for its untenable position, the majority tries to rely on the interplay between RLUIPA and the Prison Litigation Reform Act, maj. at 717, but the attempt boomerangs. As I understand the majority’s argument, it is that RLUIPA can’t apply to courthouse holding facilities because the prisoners aren’t there long enough to file grievances under the PLRA to resolve their RLUIPA claims. Maj. at 717. This argument has a simple answer, namely that the PLRA only covers “jail[s], prisonfs] or other correctional facilit[ies].” 42 U.S.C. § 1997e(a). Pretrial detention facilities (however defined) are categorically exempt from the PLRA, although they are covered by RLUIPA. The interplay between the two regimes actually undermines the majority’s position. This is another argument the majority brings up on the fly with no input from the parties. And, once again, the majority gets it wrong.
Finally, the majority seeks refuge in legislative history. Maj. at 716-17. As the late, great Judge Harold Leventhal said, consulting legislative history is like looking over the heads of a crowd and picking out your friends. Alas, the majority here finds few friends; they’re more like cool acquaintances. From the hefty legislative history of RLUIPA, the majority plucks a couple of quotes where Senators Hatch and Kennedy indicate that the primary purpose of the statute is to protect individuals residing in institutions. It is not surprising that a floor statement would focus on the most serious abuses the law is meant to target, which will almost invariably involve long-term residents of institutions. One wouldn’t expect a floor statement to cover every wrinkle of the statute. But nothing the senators say precludes applying the statute to Khatib’s case. Keep in mind that we are commanded to read the statute broadly and give it the maximum effect. Do Senators Hatch and Kennedy stand in the way? Certainly not.
Congressman Canady, who is not a friend, gets no wave from the majority, or even a nod. Yet, Canady was one of the bill’s co-sponsors in the House and entered a section-by-section analysis into the Congressional Record. This analysis explains that, just like it says, RLUIPA is designed to “protect the religious exercise of persons residing in or confined to institutions defined in the Civil Rights of Institutionalized Persons Act.” 146 Cong. Rec. E156301, E1563 (extension of remarks) (Statement of Congressman Canady) (emphasis added). So much for the conceit that the statute only protects inmates who reside in institutions.
This is not a hard case. The statute here clearly covers courthouse holding facilities like the one where Souhair Khatib was confined and forced to uncover her head in the presence of men who were not her husband. As the district court recognized — and the majority acknowledges— this is a serious affront to her religious beliefs. I can see no plausible reason why a facility which has a permanent staff of 20 deputies and handles thousands of inmates a week ought to be exempted from RLUIPA. If accommodating an inmate’s religious beliefs is too burdensome or inconvenient, defendants need not do so. See 42 U.S.C. § 2000cc-l(a). But that is not something we can adjudicate at this stage of the proceedings. All we can decide *722right now is whether there is any conceivable way that a courthouse holding tank is a pretrial detention facility, as specified in RLUIPA. You don’t have to be the White Queen to believe that it is. Freud, Leventhal and Kennedy are looking down on us and shaking their heads in disappointment. We need to reverse and send the case back for trial.