The Freedom From Religion Foundation in a friend-of-the-court brief is urging the U.S. Supreme Court to reject an extremist Christian legal outfit’s latest legal ruse.
The national state/church watchdog argues in an amicus brief filed in a case, Grand v. City of University Height, before the Supreme Court that it should dismiss the case because the case was built on a nonexistent dispute with the aim of overriding constitutional rules governing who can sue in federal court.
The lawsuit involves a former resident of University Heights, Ohio, who in 2021 invited a dozen or so neighbors to participate in weekly Jewish prayer gatherings at his home. After the invitation was circulated more widely, allegedly without his knowledge, city officials sent the resident, Daniel Grand, a cease-and-desist letter alerting him that he would need a special use permit if he intended to use his property as a house of worship for large gatherings.
Grand applied for a permit, then later withdrew his application, stating that he never intended to operate a house of worship from his home. Both Grand and the city agreed that small, informal religious gatherings, including the one Grand intended to host, do not require a permit under the city’s zoning ordinance. The city never enforced the ordinance against him, and the city has expressly acknowledged that residents may host regular, informal religious or nonreligious gatherings without government permission.
FFRF warns that allowing the case to proceed could undermine constitutional safeguards that require federal courts to resolve genuine legal disputes rather than issue sweeping rulings based on hypothetical injuries.
“The agreement by both parties that Grand would not need a permit to host the gatherings he intended to host is destructive to all of his arguments that the Court has jurisdiction,” the brief argues. “It appears this case is now a ‘smoke and mirrors’ challenge meant to advance a policy agenda, but afford no actual relief to the petitioner. This court’s jurisdictional requirements are in place in part to ensure that the court cannot be manipulated in this manner.”
FFRF contends that, in accepting this case, in which oral arguments will be heard in December, the court seems eager to advance the agenda of conservative religious litigants — even when the underlying disputes no longer exist.
“The highest court in the land should be upholding the rule of law, not encouraging religious litigants to disregard it,” comments Annie Laurie Gaylor, FFRF co-president.
Grand sold his home and moved out of University Heights in July of this year. He no longer owns property there and has indicated no intention of returning. The city’s zoning ordinance therefore cannot restrict his future activities. FFRF points out in its brief that Grand’s counsel, Alliance Defending Freedom, may have shirked its duty to inform the court of this change: “Grand himself may not have been aware that his move to a new town would create a jurisdictional problem for this court. His attorneys, however, should have known of the mootness issue and of their duty to notify the court of Grand’s move as soon as it arose. They failed to do so.”
“This case is a textbook example of why the Constitution limits federal courts to actual cases and controversies,” adds FFRF Senior Counsel Sam Grover, counsel of record on the brief. “The dispute arose from a misunderstanding, and now that Grand has moved, the issue is very obviously moot. A Supreme Court ruling would provide no meaningful relief to Grand or anyone else.”
FFRF argues that Article III of the Constitution restricts federal courts to resolving actual cases and controversies. A plaintiff must demonstrate a sufficiently concrete injury, and that controversy must remain alive throughout the litigation.
Grand’s challenge fails on both counts, FFRF maintains. He cannot establish a credible threat of enforcement against activities the city acknowledges are permissible, and his departure from University Heights has rendered his requests for prospective relief moot.
FFRF warns that the case fits a troubling pattern of religious liberty litigation designed to secure sweeping constitutional precedents even when the underlying disputes are questionable or no longer live.
FFRF points to Kennedy v. Bremerton School District, the Supreme Court’s controversial 2022 school prayer decision, as another example of the dangers of overlooking whether a genuine legal controversy still exists. Former high school football coach Joe Kennedy moved nearly 3,000 miles from Washington state to Florida during litigation, establishing residency there. Nevertheless, the Supreme Court, instead of ruling the case moot, ruled in his favor, dramatically weakening longstanding protections against school-sponsored religious activity. After winning his case, Kennedy returned to Bremerton to coach just one football game before resigning and heading back to Florida. That sweeping constitutional ruling occurred in a case in which the plaintiff appeared to no longer have a meaningful stake in the outcome.
“Standing and mootness aren’t technicalities that courts can overlook whenever a politically charged case presents an attractive opportunity to make new law,” adds Grover. “These constitutional safeguards protect everyone. Religious litigants should have exactly the same access to the courts as anyone else, but not preferential access.”
FFRF regularly advocates for the constitutional rights of atheists, agnostics and other nonreligious Americans, who must also meet strict standing requirements when challenging government actions that violate the separation of state and church. Allowing religious plaintiffs to bypass those requirements would create an unacceptable double standard, FFRF warns.
FFRF is asking the Supreme Court to dismiss the case as improvidently granted or, alternatively, affirm its dismissal or lack of jurisdiction.
FFRF legal fellow Charlotte Gude prepared the amicus brief, with editing support from FFRF attorneys Sam Grover and Sammi Lawrence.
The Freedom From Religion Foundation is a U.S.-based nonprofit dedicated to defending the constitutional principle of separation between state and church and educating the public on matters relating to nontheism. With about 40,000 members, FFRF is the largest association of freethinkers (atheists, agnostics and humanists) in North America. For more information, visit ffrf.org.
