A little-noted Supreme Court order has generated significant support for consideration of a constitutional issue that should be resolved by a unanimous decision of the Justices. Several friend-of-the-court briefs were filed on April 10, urging the court to decide that the First Amendment’s Freedom-of-Religion Clause secures prayer in one’s home.
Daniel Grand lives in University Heights, a suburb of Cleveland. He is an Orthodox Jew who invited Jewish neighbors to walk to his home for Sabbath-morning services attended by a minyan, a public prayer quorum of 10 men. On receiving a complaint from Grand’s neighbors, the local authorities took prompt, decisive steps to counter his project. There was no possibility—because of the invitees’ own Shabbat observance—that their attendance would create traffic or parking problems.
Nonetheless, the University Heights mayor issued a legal cease-and-desist order declaring Grand’s invitation to be the formation of a “religious place of assembly” in violation of the local zoning ordinance. The mayor invited Grand to initiate a request for a zoning variance.
The invited application for a “special-use permit” produced enough bureaucratic wrangling that Grand, who has a law degree, dropped the zoning request and initiated a federal lawsuit under RLUIPA (the federal “Religious Land Use and Institutionalized Persons Act”) to enjoin the city’s interference with his invitation for neighbors to walk and assemble at his home for prayer.
University Heights responded that Grand had forfeited his legal claim by failing to pursue his zoning application. His claim, they asserted, was a premature challenge to the city’s enforcement of the zoning law. Relying on a 1985 Supreme Court precedent that had imposed a “finality” requirement in a distinguishable zoning case, the federal trial judge held that Grand’s lawsuit was not “ripe” for judicial decision. When Grand appealed that ruling to the federal court of appeals, the U.S. Department of Justice filed an amicus curiae brief supporting his appeal.
The chief judge of the United States Court of Appeals for the Sixth Circuit is Jeffrey Sutton. In years on the federal bench, Sutton, who was born in Saudi Arabia, has rarely sympathized with a Jewish or Israeli interest.
As solicitor general of Ohio, he argued successfully in the Supreme Court in 1997 that the Religious Freedom Restoration Act was unconstitutional if applied to state or local government. In 2021, he ruled as a federal appellate judge that protesters who gathered around a synagogue in Ann Arbor, Mich., while Sabbath services were being held, with signs that declared “Jewish Power Corrupts” and “No More Holocaust Movies,” as well as “Stop Funding Israel,” were engaging in nothing more than First Amendment-protected “public discourse in public fora”—specifically, “American-Israeli relations.”
Sutton’s condemnation of the lawsuit encouraged the protesters, who were accused of antisemitism by the Ann Arbor City Council, to seek and recover their attorneys’ fees from the plaintiffs who had initiated a lawsuit to move the protesters away from the synagogue.
The Sixth Circuit’s decision in the home-prayer case, written by Sutton, held that “most of Grand’s challenges to the ordinance are unripe.” Sutton’s opinion—a legalistically refined rejection of each of Grand’s arguments—incredibly minimizes or nullifies every one of Grand’s viable legal claims in order to affirm the district court’s dismissal of the lawsuit.
When Grand petitioned for Supreme Court review of Sutton’s ruling, University Heights followed what has recently become a favored response to requests that the High Court agree to consider a legal issue that deserves consideration, but may be swept aside if no one pays it attention: the respondent waives the right to submit a response. Someone within the court, possibly a law clerk, spotted this attempted camouflage. The court issued an order requesting University Heights to respond to Grand’s petition.
University Heights has asked for and been granted an extension to May 11. But on April 10, the court received nine friend-of-the-court briefs supporting Grand from organizations like the American Center for Law and Justice, the Jewish Coalition for Religious Liberty, the Conference of Catholic Bishops, the Union of Orthodox Jewish Congregations, Agudath Israel of America, and the American Center for Law and Justice.
If the Supreme Court agrees to consider and decide the prayer-at-home case, oral argument will be heard during the court’s next term, which begins in October. Stripped of its legalistic niceties, the case presents a constitutional question that is fundamental to religious freedom. It should produce a historic, unanimous victory for Americans’ freedom to worship, particularly crucial in these fractured times.
