University Heights, Ohio, is a highly educated, affluent suburb of Cleveland with a significant population of Orthodox Jews. In January 2021, one of its residents, Daniel Grand, invited fellow Jews to come to his home for Sabbath prayer. For this action, the city sent him a cease-and-desist letter, which was followed by police cruisers patrolling his street to enforce the order.
The pressure on Grand did not stop there. The mayor encouraged Grand’s neighbors to watch his house for signs that Jews were gathering inside. City officials demanded architectural drawings of his home, issued property citations, withheld his certificate of occupancy, and, at times, refused to collect his trash. A neighbor set up surveillance cameras aimed at his house.
With his right to assemble and engage in worship in his own home under assault, Grand filed a federal lawsuit. He lost at the district court, and when the case finally landed at the Sixth Circuit Court of Appeals, that court ruled that his legal claims were not “ripe,” meaning he had to complete the city’s final administrative process and then come back to state his constitutional claims in order to get relief.
The lawsuit — Grand v. City of University Heights, Ohio — will be heard by the U.S. Supreme Court in the upcoming term.
The question before the justices is whether Americans alleging First Amendment injuries must first obtain a final administrative land-use ruling before their case can be heard in court — even when it is undisputed that a person’s religious freedom has been chilled, and even when government officials have shown discriminatory motives.
It is common for city zoning enforcement to address traffic, parking, and noise, but those were not factors in Grand’s case because Orthodox Jews do not drive on the Sabbath. The guests who would come to his home would walk there and pray quietly inside.
The factual record is unambiguous and distressingly hostile to the Jewish community of University Heights.
At a commission meeting broadcast on YouTube with more than 100 residents in attendance, Grand’s religious practices were openly denigrated. One neighbor supporting the city’s action dispensed with pretext altogether: “I am not Jewish and I do not want our neighborhood labeled as Jewish.”
In the First Amendment context, that sort of viewpoint discrimination matters. Grand’s complaint alleges that the city has enforced its permit requirement against home gatherings of Orthodox Jews and no one else — poker and bridge games, book clubs, game nights, and sorority and fraternity gatherings were never targeted for enforcement. And treating religious activities worse than secular activities is something that the Constitution does not tolerate.
The Supreme Court has encountered similar circumstances of anti-religious government conduct before. In Church of Lukumi Babalu Aye v. City of Hialeah (1993), the Court held that the free exercise clause protects against hostility “masked, as well as overt.” In Masterpiece Cakeshop (2018), it held that government action burdening religious exercise cannot stand when paired with official expressions of hostility toward religious faith.
Federal statutes are designed to protect against what happened to Grand, too. In 2000, Congress wisely passed the Religious Land Use and Institutionalized Persons Act, warning that discretionary zoning processes are wielded to exclude small and unfamiliar congregations — including, in the words of the statute’s sponsors, “Jewish shuls and synagogues.”
This danger is not theoretical. A small Orthodox congregation in Dallas, Congregation Toras Chaim, learned this lesson in 2015 when it was sued for reasons similar to those motivating Grand’s persecutors. The congregation spent five years defending its Sabbath meetings against a parking regulation invoked to shut them down — Dallas demanded parking spaces for worshipers whose faith forbids them to drive. The congregation prevailed, but only after illegal penalties and burdensome litigation.
That case impeaches the argument that Grand should simply complete the city’s land-use process before filing a lawsuit. When a jurisdiction burdens any religious exercise like this, the proceedings become the punishment.
For a man commanded by his faith to pray with a “minyan” — ten fellow worshipers — on the Sabbath regardless of the next city planning-commission cycle, justice delayed is worship denied.
And that conscience violation has no place under the safeguards our nation has adopted for such core freedoms. In 1790, George Washington wrote to the Hebrew Congregation of Newport, R.I., that religious liberty in America would not be a matter of “toleration” — an indulgence one class of people grants another — but the exercise of “inherent natural rights.” A right that cannot be vindicated until the government that violated it finishes its paperwork is mere toleration (if not intolerance), not liberty.
The Supreme Court should reverse the Sixth Circuit and reaffirm that when the government forbids prayer in a private home, the constitutional injury is complete — and the courthouse doors must remain open.
Edward Blum, a visiting fellow at the American Enterprise Institute, is the president of the American Alliance for Equal Rights and the founder of Students for Fair Admissions. Rabbi Cary Kozberg is the co-founder of the Mattathias Project, which has filed an amicus brief supporting the petitioner.