Michael A. Helfand is a professor at Pepperdine Caruso School of Law and a visiting professor at Yale Law School.
The Supreme Court agreed last month to hear a case that asks a remarkable question: Can the government require a homeowner to obtain a permit before inviting friends to his house for prayer?
Grand v. City of University Heights centers on an Orthodox Jewish minyan — a prayer quorum consisting of at least 10 adult men — but the legal principles at stake extend well beyond one faith.
The case will arrive at the court after years of neighborhood intrigue and municipal politics, where attempts to convene a minyan in a private home devolved into allegations of anti-Jewish animus, police surveillance, zoning hearings and cease and desist orders.
In January 2021, Daniel Grand, an Orthodox Jewish homeowner in University Heights, Ohio, emailed roughly a dozen friends inviting them to his house for a Shabbat minyan. Soon afterward, a neighbor informed the city about Grand’s email, complaining and asking the mayor to “put a stop to this.” Under the city’s zoning ordinance, “houses of worship” require a special-use permit. Acting on the complaint, the mayor called Grand regarding what he described as an “urgent matter.” Later that day, a city official ordered Grand to “immediately cease and desist” using his home as a “place of religious assembly” until he obtained the permit.
Although Grand maintained that hosting a minyan in his home did not make it a house of worship, he complied. He canceled the gathering and applied for the permit the city demanded. What followed was a contentious zoning process. More than 100 people attended a virtual public hearing about it, after which the city’s planning commission tabled Grand’s application, requested additional information and scheduled a second hearing. Before the second hearing, Grand sought to submit the additional information the planning commission had requested. City officials told him he had already “closed” his case and that no additional evidence would be considered at the hearing, so he withdrew his application.
The dispute continued. At the next planning commission meeting, the mayor announced that the cease and desist order “remains in effect.” He declared that “congregating” in a residential neighborhood without a permit violated city law and urged residents to report activities “consistent with” a house of worship so the city could “seek all appropriate remedies in court.” Grand alleges that the campaign against him continued and included police surveillance.
Grand then filed a suit in federal court, alleging that the city’s actions violated the First Amendment, the Ohio Constitution, common law and the Religious Land Use and Institutionalized Persons Act, a federal statute protecting religious institutions and exercise from discriminatory or unduly burdensome land-use regulation. But both the district court and the U.S. Court of Appeals for the 6th Circuit dismissed his lawsuit for the same reason. In their view, the case was not ripe for review — one of the prerequisites for a federal court to hear a case — because Grand withdrew his application and never received a final decision from the planning commission.
The lower courts therefore never reached the underlying question of whether the city could require a special-use permit for a home minyan — or whether hosting this minyan even qualified Grand’s home as a house of worship. Instead, the lower courts held that Grand had to complete the local zoning process before asking a federal court to hear the case.
The procedural angle of Grand’s case — particularly the “final decision” requirement — also exposes a broader problem. If a municipality can avoid judicial review by insisting that the zoning process continues, what prevents it from extending that process indefinitely? An inflexible rule requiring a final decision ultimately incentivizes bureaucratic gamesmanship. More hearings. More requests for information. More procedural hurdles. All the while, no federal court can address the merits of the case.
The pertinent question here is not if a zoning board has issued a final decision. It is whether the administrative process has become a burden on religious exercise that the Religious Land Use and Institutionalized Persons Act forbids.
This is precisely why the Supreme Court’s decision to hear the case is so significant. The court did not agree to decide whether Grand ultimately has a right to host a minyan in his home. Instead, its decision will focus on those who are barred from engaging in religious exercise while an administrative process drags on, ruling on if they may ask a federal court whether the government has the authority to impose that burden.
Religious practitioners should not have to navigate a time-consuming process to obtain judicial review. A ruling in favor of Grand would not eliminate zoning laws. It would prevent local governments from using zoning procedures to indefinitely stave off decisions on whether those laws are applied consistently with federal religious-liberty protections.
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