SETH ORANBURG: Local Municipalities Weaponize Bureaucracy Against Prayer

As Congress debates antisemitism legislation and the Religious Liberty Commission holds hearings on rising hate, a case pending before the Supreme Court reveals a more mundane threat: city officials who use zoning bureaucracy to shut down Jewish prayer in a private home.

Daniel Grand invited a handful of neighbors to his house on a Saturday morning to pray. The City of University Heights, Ohio, served him with a cease-and-desist order, calling his home an “illegal house of worship.” Mayor Michael Dylan Brennan then encouraged Grand’s neighbors to surveil his home and report any religious activity for punishment.

When a city criminalizes home worship, you’d figure the homeowner has recourse. On paper, yes. In practice, no. In reality, municipalities across the country destroy faith communities not through action but through something more sinister: selective inaction.

Home-based worship is fundamental to the American religious tradition. Jews congregated in living rooms (and basements, when authorities murdered Jews) for millennia. Christians gathered in homes from the earliest days of the church. Acts 2:46 describes believers “breaking bread in their homes” daily. Catholics, Protestants, Pentecostals, and Muslims all maintain traditions of small-group prayer and study that happen not in sanctuaries, but where families actually live.

What could justify crushing home worship with the gears of local bureaucracy? Heavy traffic? Orthodox Jews don’t drive on the Sabbath. Loud noise? Ten men praying indoors without amplification is quieter than a backyard barbecue. Grand could have hosted a weekly football party with cheering and street parking, and the city would have done nothing. But because people gathered to pray, University Heights weaponized its zoning code.

City Law Director Luke McConville served the cease-and-desist within hours. It labeled Grand’s home an illegal “religious place of assembly” and called the gathering a “shul,” a Yiddish word appearing nowhere in the city’s zoning code and with no legal definition in Ohio. McConville knew enough about Jewish practice to name it – and criminalize it.

Note the lightning speed of that aggressive action. Contrast it with the Kafkaesque delay Grand faced when he applied for the special use permit the city demanded.

The Planning Commission adopted a hostile “quasi-judicial” hearing format – apparently for the first time in its history – specifically for Grand’s application. The morning after the first hearing, Commission member Paul Siemborski emailed colleagues declaring the use “not allowed,” predetermining the outcome before the process was even finished. (So much for recusal for prejudice!) Mayor Brennan refused to let Grand supplement his materials. Every door he knocked on opened into another waiting room.

Amicus briefs in Grand’s Supreme Court petition document this pattern nationwide. In Bethpage, Long Island, Muslims trying to expand a mosque faced what the Religious Freedom Institute calls “denial by delay”: serial continuances and shifting demands, all while the municipality insisted nothing was ripe for judicial review because no final vote had occurred. In Fairfax County, Va., officials proposed a zoning amendment explicitly targeting home Bible studies. In Georgia, a retired couple who had hosted a quiet religious retreat for 14 years faced zoning threats until the ACLJ intervened; the municipality backed down, but no permit was ever denied. The harm was inflicted by selective bureaucratic action that traps people in a dismal system, followed by relentless delay.

The Department of Justice confirms the pattern: Muslims, Jews, Buddhists, and Hindus make up 4.2% of the American population but represented over 55% of religious land-use investigations between 2010 and 2016. The neutral machinery of local zoning grinds hardest against those with the least institutional power to resist it.

The problem is vagueness married to discretion. The system is tragic in that it needs no particular villain, though it certainly empowers them. It needs only a vague ordinance, a discretionary permit process built for institutions with lawyers rather than families with prayer books, and a legal doctrine that shields the process from judicial review. Given those ingredients, exclusion is virtually guaranteed.

Grand withdrew his application in the face of a proceeding whose outcome Siemborski had already announced. Then he sued –pro se, without a lawyer – under the First Amendment and RLUIPA, the federal statute Congress passed to stop exactly this.

He lost. The Sixth Circuit, in an opinion by Chief Judge Jeffrey Sutton, held his claims were not “ripe” because no final decision had been issued. The court said Grand was “the author of any chilling effect on his First Amendment interests.” The man who fled a process rigged by McConville, Siemborski, and Brennan was told his flight proved he was never in danger.

Dumping Grand’s case because it was “not ripe” means a city never has to say no. It just has to never say yes. Meanwhile, the mayor organizes the neighbors to make sure nobody prays. The Supreme Court should take this case to decide whether petty local officials can weaponize the coercive power of the state to shut down religion.

Seth C. Oranburg is a Professor of Law at the University of New Hampshire Franklin Pierce School of Law. He writes on how organizational rules, including municipal procedures, change who enjoys America’s promises. 

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the 🏢Daily Caller News Foundation.

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