Upcoming SCOTUS case pits administrative finality against freedom of religion

The U.S. Supreme Court’s October, 2026 term promises an important land use case to keep an eye on. In Grand v. City of Univ. Heights, Ohio, 159 F.4th 507, 509 (6th Cir. 2025), cert. granted sub nom. Grand v. Univ. Heights, 25-965, 2026 WL 1871301 (U.S. June 30, 2026) (Scotublog link), the Court will have before it a case that could considerably alter the balance between land use administrative decision making processes and civil rights claims.

From the city’s perspective, the petitioner wanted to hold religious services in his house and so he needed a special use permit (SUP) to run a “house of worship.” The man initially applied for the permit, but then he withdrew it saying, “I’m withdrawing my application for a special use permit. I do not wish to operate a house of worship as is defined under the zoning ordinance, in the privacy of my home.” Eighteen months later, the man filed constitutional claims against the city. Because there was no final decision, the city argues, he cannot bring his constitutional claims until there is a decision on the applicable land use permit.

Of course, the petitioner sees it differently. The petitioner, who is Jewish, says he does want to establish a “house of worship” and therefore doesn’t need an SUP. In his telling, the problems began when he sent an email to “around twelve” friends to “invite them to walk to his home to pray as a minyan that upcoming Sabbath.” The petitioner’s argument is that, at that moment, he suffered a cognizable constitutional injury and didn’t need to go through the city’s permitting process to bring his constitutional claim. In the language of the brief:

If Grand’s [the petitioner] next-door neighbor invited nine friends over for a weekly poker night or a Tupperware party, the City would not require a special permit to operate a “casino” or “storefront.” The City targets only Grand’s religious practice. . . . Grand’s claim was ripe right then.

So that is the dispute about the facts.

But what is the legal issue? The petitioner’s argue that it’s about a circuit split on whether finality is required for First Amendment claims in the land use context. From the petitioner’s reply brief:

There is a square circuit conflict over whether Williamson County finality applies to free-exercise claims. The First and Eleventh Circuits say “no,” Williamson County’s takings-based finality rule does not apply. Pet. 14-15 (discussing Roman Cath. Bishop of Springfield v. City of Springfield, 724 F.3d 78 (1st Cir. 2013), and Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach, 727 F.3d 1349 (11th Cir. 2013)). Conversely, the Third and Ninth Circuits—and now the Sixth—have transposed the Takings Clause doctrine of Williamson County into the First Amendment context, eliding the critical doctrinal distinctions between takings and free-exercise claims.

That could be the issue, but from a variety of litigation I have seen over the past several years, there are a whole host of issues here that are important to local governments tied up in the facts here.

It is as old as Euclidean zoning itself that factual dispute arise as to how to categorize the use someone seeks to engage in. While here it is a religious use, this kind of issue comes up in all contexts because life does not fit neatly into a zoning use table. My guess is that the Court will skip over this issue and go to the constitutional issue, but such a decision could complicate any effort to enforce the decision, whatever it is. Even if the Court holds for the petitioner, does it mean that religious entities can completely side-step administrative permitting processes to bring a constitutional claim by arguing that any use of a religious institution doesn’t fit squarely within a particular use designation? And is this just about the First Amendment claims, or does this apply to any constitutional right? This fact-based categorization question is huge in practice. It would essentially put all the cards of categorizing a use into the hands of the regulated entity, wouldn’t it? If the Court goes there, is that the purview just of religious institutions…or any regulated entity?

Beyond the First Amendment, there is a lot of debate about whether run-of-the-mill constitutional claims—equal protection, due process, etc.—can be brought before a final land use decision has been made. From a local government perspective, this makes no sense because the government hasn’t had a chance to approve or deny the use (religious or otherwise) and therefore hasn’t made a final administrative decision and thus there is no exhaustion. While petitioner’s frame this as importing the Williamson County standard from takings to the First Amendment, the idea of administrative finality is longstanding in land use law. From the petitioner’s perspective, however, the administrative finality requirement is an unnecessary hoop to go through. Here, the petitioner claims that the permit doesn’t apply to him at all…the categorization argument. But you could imagine how the Court could use this case as a vehicle to go broader: something like…even if the use category does apply, the First Amendment claim, or other constitutional claim, could still be permitted before finality based upon facts.

All the usual suspects are lined up in amicus briefs making the arguments you’d expect. I hope the Court takes a step back and thinks about the broader effects of how to effectively manage a zoning code. My guess is they won’t. The Court, including liberal justices, seem tired of administrative processes they view as unwieldy; for example, the first Sackett v. EPA (2012) decision and its 9-0 take-down of the agency’s administrative compliance orders.

In this age of abundance theory, though, I see this case as an example of how use categories can cause conflict, about how the processes we use to permit uses are not great at dispute resolution, and how the complexity of lines drawn to protect administrative processes while also allowing rights to be litigated is difficult to draw in a way that resolves disputes efficiently. The case, at least as the petitioners would argue, is about where to draw that line with the First Amendment. But the litigation out there is asking this question more broadly. I do wonder whether the Court will go take this chance to swing big, and if they do, how that might affect day-to-day practice well beyond religious uses.