Amicus Curiae Brief — Daniel Grand, Petitioner v. City of University Heights, Ohio, et al.

Supreme Court briefApr 10, 2026

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No. 25-965

In the Supreme Court of the United States

DANIEL GRAND, Petitioner,

CITY OF UNIVERSITY HEIGHTS, OHIO, ET AL.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE

PROTECT THE FIRST FOUNDATION

SUPPORTING PETITIONER

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

HANNAH C. SMITH

JOSHUA J. PRINCE

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

Telephone: (202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amicus Curiae

APRIL 10, 2026

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTRODUCTION, SUMMARY, AND

INTEREST OF AMICUS CURIAE ......................... 1

STATEMENT .............................................................. 3

ADDITIONAL REASONS FOR GRANTING

THE PETITION ....................................................... 4

Discretionary Licensing Regimes

Lacking Clear Standards—Which This

Court has Repeatedly Condemned in the

Speech Context—Seriously Hinder

Religious Free Exercise. .................................... 4

II. Requiring Religious Believers Whose

Free Exercise Rights Have Been Chilled

to Prove More Than a Concrete Threat of

Enforcement Threatens Irreparable

Harm. ............................................................... 10

CONCLUSION .......................................................... 11

TABLE OF AUTHORITIES

Cases

Page(s)

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) .................................................. 9

City of Lakewood v. Plain Dealer Publ’g Co.,

486 U.S. 750 (1988) .............................................. 2, 9

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) .................................................. 6

Kunz v. New York,

340 U.S. 290 (1951) .................................................. 7

Largent v. Texas,

318 U.S. 418 (1943) .............................................. 5, 6

Mahmoud v. Taylor,

606 U.S. 522 (2025) ............................................ 1, 11

Mirabelli v. Bonta,

146 S. Ct. 797 (2026) .............................................. 11

Niemotko v. Maryland,

340 U.S. 268 (1951) .................................................. 8

Roman Cath. Bishop of Springfield v.

City of Springfield, 724 F.3d 78

(1st Cir. 2013)......................................................... 10

Roman Cath. Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) .................................................. 11

Saia v. New York,

334 U.S. 558 (1948) ............................................... 4-6

iii

Speech First, Inc. v. Sands,

144 S. Ct. 675 (2024) ................................................ 2

Ward v. Rock Against Racism,

491 U.S. 781 (1989) .................................................. 9

Regulation

Univ. Heights, Ohio City Ord. §1274.01 ..................... 7

Other Authority

Eli Nachmany,

Bill of Rights Nondelegation,

49 BYU L. Rev. 513 (2023) ...................................... 4

INTRODUCTION, SUMMARY, AND

INTEREST OF AMICUS CURIAE 1

The petition should be granted to clarify that

land-use claims brought under the First Amendment

and RLUIPA ripen once the government threatens

enforcement in a way that could chill religious

exercise—if not earlier. Petitioner Daniel Grand

cancelled a prayer meeting at his home after

government officials threatened him for violating

zoning laws. Grand brought claims against the city

alleging that its actions burdened his right to freely

exercise his religion, but the district court and the

Sixth Circuit held that his claims were unripe because

Grant withdrew an exemption request before the city

denied it. This was wrong. When a person seeks to

worship in his home, threats of zoning enforcement

can chill religious exercise. Here, they did. And since

the “loss of First Amendment freedoms” is “irreparable

injury,” Mahmoud v. Taylor, 606 U.S. 522, 569 (2025)

(citation omitted), federal courts should be open to

prevent such harms even before the government actor

has received or acted on an exemption request. In

holding otherwise, the lower courts here furthered a

split and left landowners in at least three circuits—the

Third, Sixth, and Ninth—without redress even when

zoning laws chill their free exercise rights.

In the speech context, this Court’s precedents

confirm that regimes that predicate a person’s right to

1 This brief was not authored in whole or in part by counsel for

any party and no person or entity other than amicus curiae or its

counsel has made a monetary contribution toward the brief’s

preparation or submission. Counsel of record for all parties

received timely notice of amicus’ intent to file.

speak on his first seeking government permission are

suspect since, if permission must be granted,

permission can be denied. E.g., City of Lakewood v.

Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988). And

some speakers, rather than facing the indignity of

asking the government for permission to speak, will

keep silent. Yet, as Justice Thomas has explained,

government action leading to “self-censorship” violates

“the First Amendment just as acutely as a direct bar

on speech.” Speech First, Inc. v. Sands, 144 S. Ct. 675,

676 (2024) (Thomas, J., dissenting) (citation omitted).

So too with religion. Because Grand stopped his

planned religious activity after being threatened with

government enforcement, his rights were violated

“just as acutely” as if he had sought an exemption that

was denied. Yet the Sixth Circuit erroneously found no

cognizable final harm.

That error is particularly troubling to amicus

Protect the First Foundation (“PT1”), a nonprofit,

nonpartisan organization that advocates for

protecting First Amendment rights in all applicable

areas of law. Amicus agrees with Grand (at 14) that

“traditional First Amendment principles,” and not

zoning law’s traditional finality requirement, should

apply in cases involving attempts to use land for

religious purposes. Amicus writes separately to

expand on Grand’s showing (at 17-18) that

discretionary licensing regimes are constitutionally

invalid under this Court’s precedents—yet another

reason for this Court’s review.

In short, the Sixth Circuit ignored that Grand’s

rights were burdened as soon as threats that the city

would enforce its zoning laws chilled his efforts to use

his land for religious reasons. That was wrong, and

this Court should grant review and reverse.

STATEMENT

Grand sought to follow his faith’s command to

“pray thrice daily with a group of ten men” on his

Sabbath by inviting them to his home. App.2a. A

neighbor complained, and the city sent Grand “a ceaseand-desist letter” threatening “building code citations”

for violating the city’s zoning laws. App.3a. Grand

cancelled the next meeting in response. Ibid.

Grand then sought a special-use permit from the

city’s planning commission that would allow him to

use his home for “periodic religious gatherings.”

App.3a-4a. The planning commission considers

various things when deciding whether to grant a

special-use permit. App.27a-28a. Some are loosely

defined. See ibid. (parking and traffic considerations,

lighting, noise, etc.). But the ordinance has a catch-all

allowing the commission to deny permits “contrary to

the public health, safety and welfare.” App.28a.

While Grand’s application was pending, police

“dr[o]ve past Grand’s house” and an inspector

searched inside checking for violations. App.5a. At an

initial hearing, neighbors spoke against his

application. App.4a. Before the second hearing, Grand

withdrew his application because he did not want to

operate a house of worship as the zoning ordinance

defined it. App.5a (internal citations omitted).

After withdrawing his application, Grand sued.

Relevant here, he claimed that the city violated the

Religious Land Use and Institutionalized Persons Act

(RLUIPA) and the First Amendment. App.5a. But the

lower courts found his claims unripe since the city

never denied his exemption application. App.2a.

ADDITIONAL REASONS FOR

GRANTING THE PETITION

Discretionary Licensing Regimes Lacking

Clear Standards—Which This Court has

Repeatedly Condemned in the Speech

Context—Seriously Hinder Religious Free

Exercise.

The free exercise of religion—like free speech—is

a fundamental right protected by the First

Amendment and RLUIPA. Requiring an individual to

seek the government’s permission before exercising

his religion in his home seriously hinders this right. In

the speech context, recent scholarship confirms that

this “Court has long taken the view that discretionary

permitting regimes” are “censorious and thus

unconstitutional.” 2 The free exercise of religion should

be treated no differently.

1. In Saia v. New York, for example, this Court

reviewed the constitutionality of an ordinance that

allowed the public use of radio and loudspeakers to

share “news and matters of public concern” only with

“permission obtained from the Chief of Police.” 334

U.S. 558, 558 n.1 (1948). There, a minister sought a

permit to share his religion with the public. Id. at 559.

He was denied the permit and convicted for using such

2 Eli Nachmany, Bill of Rights Nondelegation, 49 BYU L. Rev.

513, 517 & n.13 (2023) (collecting cases).

equipment to spread his religious message anyway.

Ibid.

In finding that the resulting conviction facially

violated the First Amendment, the Court explained

that the ordinance “establishe[d] a previous restraint

on the right of free speech.” Id. at 559-560. Worse, the

ordinance lacked clear standards governing the Chief

of Police’s permitting decision and therefore placed

“[t]he right to be heard * * * in [his] uncontrolled

discretion.” Id. at 560-561. The Court explained that

such “uncontrolled discretion” essentially allowed

officials to deny permits “because some people find the

ideas annoying.” Id. at 560-562.

Likewise, in Largent v. Texas, the Court reviewed

an ordinance that made “it unlawful for any person to

solicit orders or to sell books, wares or merchandise

* * * without first filing an application and obtaining

a permit.” 318 U.S. 418, 418 (1943) (citation omitted).

Such permits were available only if “the Mayor

deem[ed] it proper or advisable[.]” Id. at 418-419

(citation omitted). Largent was convicted for violating

this ordinance when she asked for voluntary

contributions as she distributed religious materials.

Id. at 419-420. This Court reversed because the

“proper

advisable”

standard

left

the

“[d]issemination of ideas depend[ent] upon the”

Mayor’s approval, which the Court found to be

“administrative censorship in an extreme form.” Id. at

422.

The concerns with standardless discretionary

regimes that were dispositive of the speech claims in

Saia and Largent should be equally controlling here

with respect to Grand’s statutory and constitutional

free-exercise claims. Cf. Fulton v. City of Philadelphia,

593 U.S. 522, 533 (2021) (recognizing that laws that

burden religion are subject to strict scrutiny if they

contain a “mechanism for individualized exemptions”

(citation omitted)). And just like in Saia and Largent,

where this Court held that the government chilled

speech by requiring would-be speakers to seek

permission to speak from the government, here, Grand

needed to apply for a special-use permit before he

could exercise his religion in his home. App.2a-5a.

Just like in Saia and Largent, moreover, the city’s

ordinance lacks clear standards governing the

planning commission’s permitting decision. True, the

ordinance requires the planning commission to

consider traffic, lighting, and sound. App.27a. But it

goes no further. How much traffic is too much? When

would a religious building be too bright? When would

it be too loud? The ordinance gives no answer to those

questions. Instead, it places the authority to answer

them in the planning commission’s discretion.

Worse, even if an applicant happened to satisfy

the commission on each of those listed factors, the

application could still be denied for unspecified and

hopelessly vague catch-all reasons such as the

planning commission’s view about whether granting

the permit would harm the “public health, safety and

welfare.” App.76a (citation omitted). This broad

language essentially gives the planning commission

complete discretion to deny permits for any reason,

including if neighbors dislike the means of religious

exercise. See App.3a-4a. Under the principles this

Court established in Saia and Largent, forcing an

individual to wait for the planning commission’s

discretionary permission before exercising his religion

on private property seriously hinders the fundamental

right protected by the First Amendment.

2. Saia and Largent are hardly outliers. In Kunz

v. New York, this Court reviewed a city ordinance that

made “it unlawful to hold public worship meetings on

the streets without first obtaining a permit from the

city police commissioner.” 340 U.S. 290, 290-291

(1951). As in Saia, the petitioner—also a minister—

was convicted for speaking after unsuccessfully trying

to comply with the ordinance by obtaining a permit.

Id. at 292-293. Here again, the Court held that the

ordinance violated the First Amendment in part

because it granted the police commissioner discretion

to decide the “conduct condemned by the ordinance.”

Id. at 293. Without “appropriate standards” to guide

an official’s actions, the ordinance provided “an

administrative official discretionary power to control

in advance the right of citizens to speak[.]” Id. at 293,

295. That discretion made the ordinance “clearly

invalid as a prior restraint on the exercise of First

Amendment rights.” Id. at 293.

As discussed, the ordinance at issue here

similarly grants officials the discretionary power to

control in advance a landowner’s free-exercise rights.

App.75a-76a (text of Univ. Heights, Ohio City Ord.

§1274.01). But it goes even further than the ordinance

in Kunz, which restricted only a public religious

meeting. Here, of course, Grand needed a permit to

hold even a private worship meeting within the

privacy of his own home. App.2a-5a.

Also illustrative is Niemotko v. Maryland, 340

U.S. 268 (1951), a case this Court decided the same

day as Kunz. In Niemotko, two Jehovah’s Witnesses

“scheduled Bible talks” at a public park. Id. at 269.

Although no ordinance forbade using the park for such

talks, “the custom for organizations and individuals

desiring to use it for meetings and celebrations” was to

first “obtain permits from the Park Commissioner.”

Ibid.

The Witnesses sought—and were refused—

permission to use the park. Id. at 269-270. The story

played out in a now familiar way. The Witnesses held

their meeting anyway and, because they lacked a

permit, they were arrested and convicted for engaging

in “disorderly conduct.” Id. at 270. In reversing, this

Court concluded that it was “quite apparent that any

disorderly conduct” that the Witnesses were accused

of “must have been based on the fact that appellants

were using the park without a permit[.]” Id. at 271.

The Court then made quick work of the conviction,

finding it invalid under the “many” cases in which the

Court has “examined the licensing systems by which

local bodies regulate the use of * * * public places.”

Ibid. (collecting cases). The Court expressed concern

with the “limitless discretion” that informed the

conviction, which necessarily turned on “the whims or

personal opinions of a local governing body.” Id. at 272.

Because the unwritten practice lacked “standards”

and “narrowly drawn limitations” to “circumscrib[e]

* * * [the Park Commissioner’s] absolute power” to

deny a permit, it violated the First Amendment. Id. at

271-272.

To be sure, this Court has since established

standards allowing “reasonable restrictions on the

time, place, or manner of protected speech” in public

places—such as those necessary to ensure equitable

access to limited resources in, say, a public park. See

Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989) (collecting cases). But even this Court’s more

recent cases acknowledge and reaffirm the

fundamental unconstitutionality of regimes that

“plac[e] unbridled discretion in the hands of a

government official” to limit—or prevent altogether—

a person’s free expression. See City of Lakewood v.

Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988)

(collecting cases); accord City of Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 423 n.19 (1993).

Here, Grand faces a categorical prohibition on his

religious exercise on his private property. App.2a-3a.

And the city ordinance’s lack of clear standards for its

permitting system gives the planning commission

complete discretion over Grand’s planned exercise of

religion. Under the precedents described above, such

unbridled discretion imposes a First Amendment

harm when speech is the subject of the license. When

the subject of the license is an individual’s free

exercise of religion—whether that right is guaranteed

by the First Amendment or RLUIPA—such broad

administrative discretion should be just as unlawful.

II. Requiring Religious Believers Whose Free

Exercise Rights Have Been Chilled to Prove

More Than a Concrete Threat of

Enforcement Threatens Irreparable Harm.

Moreover, because the harms to religious

landowners are complete once the landowners are

forced to either seek government permission to use

their land for religious purposes or desist such efforts,

they should be able to vindicate their rights even

before the government decides whether to exempt

them from its zoning laws. As Grand emphasizes,

there is a split on this question. The First and

Eleventh Circuits correctly recognize that the harm to

free-exercise rights in land-use cases may “become

clear at a different point than that contemplated by

takings law.” See Pet.14-15 (quoting Roman Cath.

Bishop of Springfield v. City of Springfield, 724 F.3d

78, 92 (1st Cir. 2013)). But others, including the Third,

Sixth, and Ninth Circuits, do not. See Pet.15

(collecting cases). This Court’s review is necessary to

resolve that split and provide a remedy to religious

landowners living in those circuits that require a final

decision from the government before the landowner

can sue. For landowners in those circuits, the First

Amendment and RLUIPA offer no protection—even if,

as here, the landowner’s free exercise of religion is

chilled by government threats—until the landowner

first seeks an exemption from zoning requirements

and has it denied.

That narrow understanding of ripeness has gone

on long enough. As explained above, when the

government has the discretionary power to sanction a

landowner for not first seeking permission before

using their land for religious reasons, that is a

cognizable harm under the First Amendment and

RLUIPA. As this Court recently reiterated, “[t]he loss

of First Amendment freedoms, for even minimal

periods

time,

unquestionably

constitutes

irreparable injury.” Mahmoud v. Taylor, 606 U.S. 522,

569 (2025) (quoting Roman Cath. Diocese of Brooklyn

v. Cuomo, 592 U.S. 14, 19 (2020) (per curiam)); accord

Mirabelli v. Bonta, 146 S. Ct. 797, 803 (2026) (per

curiam).

To prevent such irreparable harms to landowners

in the Third, Sixth, and Ninth Circuits, this Court’s

intervention is necessary to resolve the split.

CONCLUSION

At the very latest, Grand’s Free Exercise and

RLUIPA claims accrued when he cancelled a prayer

meeting after the government threatened to sanction

him for violating its zoning rules. Once his free

exercise was chilled, he should have been able to

challenge even the momentary loss of his freedom to

worship in his home. But the lower courts did not allow

him to do so on the theory that zoning’s unique finality

rules rather than traditional First Amendment

principles apply. The Court should grant review and

fix that error to prevent irreparable harm to religious

landowners in the Third, Sixth, and Ninth Circuits.

Respectfully submitted,