Amicus Brief: Grand v. University Heights

In April, the Manhattan Institute supported the petition for certiorari of Daniel Grand, a devout Orthodox Jew in University Heights, Ohio who wants to use his house to hold a gathering of at least ten adult males on the Jewish Sabbath and High Holidays, known as a minyamin. But the city issued an order prohibiting him from hosting the group without securing a special zoning permit—as if he were trying to create a church or synagogue. Mr. Grand's petition was granted, and the Court will hear the case in December. MI has again filed a brief in support, arguing that Mr. Grand's freedom of religion defeats spurious land-use regulations.

Mr. Grand challenged the city’s cease and desist order and other discriminatory conduct under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), but the courts below kicked the case out, holding that a court cannot hear such a claim until the homeowner had applied for a special-use permit and been denied. The Sixth Circuit based that holding on a case called Williamson County, which imposes such a “finality” requirement where property owners allege that zoning laws have essentially taken their property without just compensation. In doing so, the Sixth Circuit deepened a circuit split and set a roadmap for other jurisdictions to impermissibly burden the right to free religious exercise.

We argue that Mr. Grand experienced a clear act of religious discrimination, and that there is no need for Mr. Grand to wait in order to vindicate his rights. His constitutional rights were harmed the moment the city blocked his religious worship, and it doesn't matter that a permitting system was the method of that harm. Moreover, there's reason to believe that the visibility of Orthodox Jews—distinctly dressed men who walk to the house rather than drive on the Sabbath—is why Mr. Grand was singled out. That has disturbing implications for religious minorities who might stand out in the crowd. The Court should vindicate Mr. Grand's right to religious freedom.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.