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

No. 25-965

In the Supreme Court of the United States

__________

DANIEL GRAND,

v.

Petitioner,

CITY OF UNIVERSITY HEIGHTS, OHIO, et al.,

__________

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

__________

BRIEF AMICUS CURIAE OF

THE BECKET FUND FOR RELIGIOUS LIBERTY

IN SUPPORT OF PETITIONER

__________

JOSEPH C. DAVIS

Counsel of Record

LORI H. WINDHAM

MICHAEL J. O’BRIEN

ANDREA R. BUTLER

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

(202) 955-0095

jdavis@becketfund.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICUS .................................. 1

INTRODUCTION AND SUMMARY

OF THE ARGUMENT ......................................... 2

ARGUMENT ............................................................... 4

I. Religious exercise rights protected by

RLUIPA are not subject to a Takings

Clause finality requirement.................................. 4

A. RLUIPA contains no Williamson

County finality requirement. ........................... 4

B. Importing a Williamson County-style

finality requirement into RLUIPA

and Free Exercise law would have

untoward consequences. ................................ 14

II. Applying Takings Clause finality

requirements to free-exercise claims

is a distortion stemming from Smith. ................ 21

CONCLUSION ......................................................... 25

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. Mayorkas,

143 S. Ct. 1312 (2023) .......................................... 20

Bennett v. Spear,

520 U.S. 154 (1997) ................................................ 7

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) .......................................... 1, 22

Carson v. Makin,

596 U.S. 767 (2022) .............................................. 24

Cassidy v. City of Brewer,

No. 12-cv-137, 2012 WL 5844897

(D. Me. Nov. 19, 2012) .......................................... 18

Catholic Charities Bureau, Inc. v.

Wisconsin Lab. & Indus. Rev.

Comm’n,

605 U.S. 238 (2025) ................................................ 1

Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) .............................................. 19

City of Boerne v. Flores,

521 U.S. 507 (1997) .............................................. 22

iii

Congregation Anshei Roosevelt v.

Planning & Zoning Bd. of

Borough of Roosevelt,

338 F. App’x 214 (3d Cir. 2009) ..................... 17, 18

Congregation Etz Chaim v.

City of Los Angeles,

No. 10-cv-1587, 2011 WL 12472550

(C.D. Cal. July 11, 2011) ...................................... 12

Congregation Etz Chaim v.

City of Los Angeles,

No. 97-cv-5042, 2009 WL 1293257

(C.D. Cal. May 5, 2009) ........................................ 12

Congregation Rabbinical College of

Tartikov, Inc. v. Village of Pomona,

915 F. Supp. 2d 574 (S.D.N.Y. 2013) ................... 18

Corner Post, Inc. v. Board of

Governors of Fed. Rsrv. Sys.,

603 U.S. 799 (2024) ................................................ 7

Employment Division v. Smith,

494 U.S. 872 (1990) ........................................ 22, 24

First Choice Women’s Res.

Ctrs., Inc. v. Davenport,

146 S. Ct. 1114 (2026) ............................................ 9

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) .......................................... 1, 24

Gonzales v. O Centro Espírita

Beneficente Uniao do Vegetal,

546 U.S. 418 (2006) .............................................. 22

iv

Guatay Christian Fellowship v.

County of San Diego,

670 F.3d 957 (9th Cir. 2011) .......................... 16, 17

Haven Shores Cmty. Church v.

City of Grand Haven,

No. 00-cv-175 (W.D. Mich.) .................................... 1

Holt v. Hobbs,

574 U.S. 352 (2015) ............................................ 1, 4

Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. EEOC,

565 U.S. 171 (2012) .......................................... 1, 24

Knick v. Township of Scott,

588 U.S. 180 (2019) ............................................ 1, 5

Laird v. Tatum,

408 U.S. 1 (1972) ................................................ 8, 9

Life Covenant Church, Inc. v.

Town of Colonie,

No. 14-cv-1530, 2017 WL 4081907

(N.D.N.Y. Sep. 13, 2017) ...................................... 17

Little Sisters of the Poor Saints

Peter & Paul Home v. Pennsylvania,

591 U.S. 657 (2020) ................................................ 1

MacDonald, Sommer & Frates

v. Yolo County,

477 U.S. 340 (1986) .............................................. 14

Mahmoud v. Taylor,

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

v

Miles Christi Religious Order v.

Township of Northville,

629 F.3d 533 (6th Cir. 2010) .......................... 15, 16

Opulent Life Church v.

City of Holly Springs,

697 F.3d 279 (5th Cir. 2012) .................................. 8

Our Lady of Guadalupe Sch. v.

Morrissey Berru,

591 U.S. 732 (2020) ................................................ 1

Pakdel v. City & County of San

Francisco,

594 U.S. 474 (2021) .......................................... 8, 14

Religious Sisters of Mercy v. Becerra,

55 F.4th 583 (8th Cir. 2022) .................................. 9

Roman Catholic Diocese of

Brooklyn v. Cuomo,

592 U.S. 14 (2020) ................................................ 20

Ross v. Blake,

578 U.S. 632 (2016) ................................................ 7

Shu Han Liu v. Holder,

718 F.3d 706 (7th Cir. 2013) ................................ 21

Sossamon v. Texas,

563 U.S. 277 (2011) ........................................ 22, 23

Suitum v. Tahoe Reg’l Plan. Agency,

520 U.S. 725 (1997) ........................................ 5, 6, 7

vi

Sumana Forest Retreat v.

County of San Diego,

No. 24-cv-1196, 2025 WL 1296696

(S.D. Cal. May 5, 2025) ........................................ 17

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ................................................ 7

Tandon v. Newsom,

593 U.S. 61 (2021) ................................................ 20

Williamson Cnty. Reg’l Plan. Comm’n v.

Hamilton Bank of Johnson City,

473 U.S. 172 (1985) ................................................ 5

Zubik v. Burwell,

578 U.S. 403 (2016) ................................................ 1

Statutes

5 U.S.C. 704 ................................................................. 7

28 U.S.C. 2342 ............................................................. 7

42 U.S.C. 405(g) ........................................................... 7

42 U.S.C. 1983 .......................................................... 4-5

42 U.S.C. 1997e(a) ....................................................... 8

Religious Land Use and

Institutionalized Persons Act,

42 U.S.C. 2000cc et seq. ...................... 1, 6, 8, 22, 23

vii

Legislative Materials

146 Cong. Rec. E1566 (daily ed.

Sep. 22, 2000) (statement of

Rep. Henry Hyde) ........................................... 11, 13

146 Cong. Rec. S6689 (daily ed.

July 13, 2000) (statement of

Sen. Ted Kennedy) ......................................... 11, 13

146 Cong. Rec. S7774 (daily ed.

July 27, 2000) (joint statement of

Sens. Orrin Hatch and Ted Kennedy) ................. 10

H.R. Rep. No. 106-219 (1999) .................. 10, 11, 22, 23

Protecting Religious Freedom After

Boerne v. Flores (Part II): Hearing

Before the Subcomm. on the

Constitution of the H. Comm. on the

Judiciary, 105th Cong. 32-36 (1998) ................... 11

Other Authorities

William D. Araiza, Arming the Second

Amendment and Enforcing the

Fourteenth, 74 Wash. & Lee L. Rev.

1801 (2017) ........................................................... 25

William Baude, Problems with Boerne v.

Flores, Divided Argument (May 15,

2026) ..................................................................... 25

viii

Dom Bede Camm, Forgotten Shrines: An

Account of Some Old Catholic Halls

and Families in England and of

Relics and Memorials of the English

Martyrs (1910) ...................................................... 21

Christopher R. Green, Clarity and

Section Five, 39 Notre Dame J.L.

Ethics & Pub. Pol’y 147 (2025) ............................ 25

Douglas Laycock & Luke Goodrich,

RLUIPA: Necessary, Modest, and

Under-Enforced, 39 Fordham Urb.

L.J. 1021 (2012) .......................................... 6, 14, 15

Michael W. McConnell, Institutions and

Interpretation: A Critique of City of

Boerne v. Flores, 111 Harv. L. Rev

153 (1997) ............................................................. 25

Christopher W. Schmidt, Originalism

and Congressional Power to Enforce

the Fourteenth Amendment, 75 Wash.

& Lee L. Rev. Online (2018) ................................ 25

Dante, Purgatorio ........................................................ 2

Easten Law, The Church in China Isn’t

What You Think, Plough Magazine,

Mar. 25, 2026........................................................ 21

1

INTEREST OF THE AMICUS 1

The Becket Fund for Religious Liberty is a nonprofit law firm that protects the free expression of all

religious faiths and the freedom of religious people and

institutions to participate fully in public life. Becket

has also represented numerous prevailing parties in

this Court. See, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012);

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682

(2014); Holt v. Hobbs, 574 U.S. 352 (2015); Zubik v.

Burwell, 578 U.S. 403 (2016); Our Lady of Guadalupe

Sch. v. Morrissey Berru, 591 U.S. 732 (2020); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. 657 (2020); Fulton v. City of Philadelphia, 593 U.S. 522 (2021); Catholic Charities Bureau,

Inc. v. Wisconsin Lab. & Indus. Rev. Comm’n, 605 U.S.

238 (2025); Mahmoud v. Taylor, 606 U.S. 522 (2025).

Becket has long been involved in land-use litigation

under the Religious Land Use and Institutionalized

Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq. Becket

brought the nation’s first RLUIPA land-use case after

the statute was enacted in 2000, see Haven Shores

Cmty. Church v. City of Grand Haven, No. 00-cv-175

(W.D. Mich.) (consent decree signed Dec. 21, 2000),

and has been involved in RLUIPA litigation on behalf

of a wide variety of religious practitioners ever since.

Becket also filed an amicus brief in Knick v. Township of Scott, 588 U.S. 180 (2019), raising the issue

1

No counsel for a party authored this brief in whole or in part

and no person other than Amicus, its members, or its counsel

made a monetary contribution intended to fund the preparation

or submission of this brief.

2

now squarely before the Court in this case: whether

the finality rule this Court articulated in Williamson

County also applies to RLUIPA and related First

Amendment claims. Becket files this brief to urge the

Court to definitively address that question, and to reject application of Williamson County’s Takings

Clause-specific finality rule in the RLUIPA and freeexercise context.

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

The right to assemble with fellow believers, as Congress recognized in enacting RLUIPA, lies “[a]t the

very core of religious liberty.” The lower court’s importation of Williamson County’s finality requirement

into religious-land-use litigation subjects that core liberty to the machinations of local bureaucrats. Religious practitioners become stuck in often expensive

and protracted zoning-board processes while their

rights are actively infringed. And far from being “already chosen” for a “happy end,” Dante, Purgatorio

III.73-74 (Hollander trans.), practitioners in this purgatory frequently are just waiting around to receive a

final no. RLUIPA does not require, or indeed tolerate,

their having to suffer irreparable losses of religious exercise in the meantime.

Williamson County’s requirement that landowners

receive a “final decision” on how a regulation applies

to a particular property before suing makes at least

some sense in its original context—regulatory takings

claims—where a court needs to evaluate the regulation’s ultimate effect to determine if it has sapped the

property of all economic value. It makes no sense in

the religious exercise context where, under this

3

Court’s precedent, a practitioner like Grand suffers irreparable harm each time he forgoes convening a minyan at his home for fear of government penalty. That

explains why, when Congress enacted a statute expressly protecting religious land use, it identified triggers for the plaintiff to bring a claim that do not depend on Williamson County finality. And Congress

was explicit that RLUIPA claims should be evaluated

against only Article III’s jurisdictional requirements,

not prudential ones like Williamson County.

To hold otherwise would open the door to the exact

hostility and mistreatment of religious land use that

RLUIPA was enacted to prevent. Examples abound in

lower courts that have applied the Williamson County

finality requirement to religious-land-use claims.

Churches and worshipers have been prevented from

assembling for religious exercise by local zoning authorities across the country, sometimes for years, with

no federal recourse, all in the name of “finality” that

never comes.

The bare fact that RLUIPA pertains to land use

provides no sound basis for importing takings law into

the statute. Rather, RLUIPA’s focus on religious land

use is itself an accident of history, ultimately resulting

from this Court’s erroneous decision in Employment

Division v. Smith. Rather than allow Smith to further

distort free-exercise protections, the Court should reject the extension of Williamson County to religiousland-use claims.

4

ARGUMENT

I. Religious exercise rights protected by

RLUIPA are not subject to a Takings Clause

finality requirement.

RLUIPA was enacted “to provide very broad protection for religious liberty,” Holt v. Hobbs, 574 U.S.

352, 356 (2015)—including, specifically, when that liberty is assertedly infringed by local land-use authorities. Nothing in RLUIPA’s text or history suggests

that Congress included in it anything like the Takings

Clause-based finality requirement this Court articulated in Williamson County, which would allow those

same local land-use authorities to indefinitely evade

judicial review.

Indeed, to import that requirement into RLUIPA

would disfavor religious claimants in the land-use context, imposing additional procedural barriers on religious exercise claims tied to land use over and above

those applying to any other religious exercise claim.

That could hardly be Congress’s intent in passing a

statute with the express purpose of safeguarding religious land use. The expensive and interminable bureaucratic delays endured by worshipers in lower

courts that have taken this step only confirms it is mistaken. This Court should reject the notion that Williamson County applies to religious-land-use claims

like Grand’s.

A. RLUIPA contains no Williamson County

finality requirement.

1. In Williamson County, this Court set out two preliminary requirements for a property owner to bring a

Fifth Amendment Takings Clause claim under 42

5

U.S.C. 1983. One of these requirements—that a property owner must first “seek[ ] just compensation”

“through the procedures the state had provided for doing so”—this Court overruled in Knick. 588 U.S. at

188, 206 (cleaned up). This case concerns the other—

that a regulatory takings claim “is not ripe until the

government entity charged with implementing the

regulations has reached a final decision regarding the

application of the regulations to the property at issue.”

Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton

Bank of Johnson City, 473 U.S. 172, 186 (1985).

Both requirements purportedly derived from the

specific language of the Fifth Amendment. The exhaustion requirement, this Court said, “stems from

the Fifth Amendment’s proviso that only takings without ‘just compensation’ infringe that Amendment.”

Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S. 725, 734

(1997). And the finality requirement “follows from the

principle that only a regulation that ‘goes too far’ results in a taking” in the first place. Ibid. (citation omitted). On its own terms, then, Williamson County is

founded on the specific demands of the Fifth Amendment. And this Court has explicitly held that the finality requirement at issue here applies to “claim[s] that

the application of government regulations effect[ ] a

taking of a property interest.” Williamson Cnty., 473

U.S. at 186 (emphasis added).

2. The takings-specific Williamson County doctrine

has no place in RLUIPA. Nothing in RLUIPA mentions any unique finality requirement. And RLUIPA’s

substantive terms make clear that no Williamson

County-style finality requirement applies. RLUIPA

prohibits applications of land-use regulations that

6

(1) “impose[ ] a substantial burden” on religious exercise without a compelling interest; (2) that are applied

“in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution”; or (3) that “discriminate[ ]

against any assembly or institution on the basis of religion or religious denomination.” 42 U.S.C.

2000cc(a)(1), (b)(1), (b)(2).

Unlike in the regulatory takings context—where a

final zoning decision is required to determine whether

a regulation “goes too far, result[ing] in a taking under

the Fifth Amendment,” Suitum, 520 U.S. at 734

(cleaned up)—the harms to religious exercise that

RLUIPA protects against can and do accrue before any

final zoning decision is reached. For example, a government can impose a “substantial burden” by forcing

churches to navigate expensive and byzantine permitting requirements before holding worship services;

and it can “discriminate” by subjecting disfavored religious minorities to more onerous application requirements than local majority faiths. See Douglas Laycock

& Luke Goodrich, RLUIPA: Necessary, Modest, and

Under-Enforced, 39 Fordham Urb. L.J. 1021, 10251032 (2012) (discussing numerous examples).

Further, nothing suggests that RLUIPA land-use

claimants must satisfy any procedural hurdles beyond

Article III’s ordinary requirements of standing and

ripeness. RLUIPA explicitly states that “[s]tanding to

assert a claim or defense under this section shall be

governed by the general rules of standing under article

III of the Constitution.” 42 U.S.C. 2000cc-2(a). And as

“standing and ripeness ‘originate’ from the same Article III limitation” and often “boil down to the same

question,” this explicit grant of jurisdiction applies to

7

ripeness requirements as well. Susan B. Anthony List

v. Driehaus, 573 U.S. 149, 157 n.5 (2014).

Nor does the statute incorporate any prudential requirements—the judge-made category in which this

Court has placed Williamson County finality. See

Suitum, 520 U.S. at 733-734 & n.7 (describing Williamson County as “prudential ripeness principles,”

not derived from Article III). “[U]nlike their constitutional counterparts,” “judicially self-imposed limits on

the exercise of federal jurisdiction * * * can be modified or abrogated by Congress.” Bennett v. Spear, 520

U.S. 154, 162 (1997) (cleaned up). Congress did precisely that here. This Court should “take [the] statute[ ] at face value—refusing to” graft onto it other,

“unwritten limits.” Ross v. Blake, 578 U.S. 632, 639

(2016).

Indeed, “it is particularly inappropriate to read

language into a statute * * * when, as here, Congress

has shown that it knows how to adopt the omitted language or provision.” Corner Post, Inc. v. Board of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 814 (2024)

(cleaned up). Congress certainly knows how to impose

additional exhaustion and finality requirements before a claimant can ask a federal court for vindication.

Congress routinely limits statutorily created causes of

action to challenges to “final agency action.” 5 U.S.C.

704; see also 28 U.S.C. 2342 (granting appellate court

jurisdiction over “all final orders” and “all final agency

action”); 42 U.S.C. 405(g) (allowing judicial review “after any final decision of the Commissioner of Social Security”). And Congress often imposes express exhaustion requirements—under the Prison Litigation Reform Act, for example, prisoners must exhaust any

8

available administrative remedies before suing in federal court. See 42 U.S.C. 1997e(a). Strikingly, RLUIPA

itself cross-references the PLRA (including its exhaustion requirement) as continuing to govern under

RLUIPA’s institutionalized-persons provisions. 42

U.S.C. 2000cc-2(e) (“[n]othing in this chapter shall be

construed to amend or repeal the Prison Litigation Reform Act of 1995”). But RLUIPA makes no mention of

a similar requirement for land-use claims.

Lacking a foothold in RLUIPA’s text, the lower

court nevertheless held that no RLUIPA claim is ripe

“until the relevant administrative agency resolves the

appropriate application of the zoning ordinance to the

property in dispute.” Pet.App.7a (cleaned up). “Of

course, Congress always has the option of imposing”

such a finality requirement on RLUIPA claims, “[b]ut

it has not done so.” Pakdel v. City & County of San

Francisco, 594 U.S. 474, 481, (2021). Instead, it made

clear that the same Article III requirements that apply

to any other religious exercise claim apply to RLUIPA

claims. See 42 U.S.C. 2000cc-2(a).

The Article III standard is well-settled—and has

been since well before Congress enacted RLUIPA.

Plaintiffs can have ripe religious exercise claims based

on “the deterrent, or ‘chilling,’ effect of governmental

regulations that fall short of a direct prohibition

against the exercise of First Amendment rights.”

Laird v. Tatum, 408 U.S. 1, 11 (1972). 2 Of course, that

2

As courts have explained, “[t]his principle applies with equal

force to the violation of RLUIPA rights because RLUIPA enforces

First Amendment freedoms, and the statute requires courts to

construe it broadly to protect religious exercise.” Opulent Life

Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012);

9

chill must be more than merely “subjective.” Id. at 1314. So courts may ask whether the challenged government action or requirement would meaningfully deter

a reasonable person’s religious exercise. That inquiry,

in some land-use cases, could include an evaluation of

how readily a permit or variance might be obtained, or

whether there is evidence of discrimination in the process itself, or whether the ordinance imposes unequal

terms on religious uses. If the ordinary Article III

standard is met, however, there is no freestanding requirement that the plaintiff seek a final decision on a

variance request before suing. A plaintiff “suffering an

‘objectively reasonable chill’ to its First Amendment”

rights is entitled to a “federal forum.” First Choice

Women’s Res. Ctrs., Inc. v. Davenport, 146 S. Ct. 1114,

1126-1127 (2026).

Grand’s religious exercise has undoubtedly been

chilled by the City’s actions, since he has been unable

to hold a minyan on a weekly basis since receiving the

cease-and-desist letter for fear of reprisal from the

City. Pet.App.115a-117a. And this chill has gone far

past subjective, as Petitioner aptly explains. See

Pet.Br. at 16-19 (chronicling campaign of police surveillance and investigations to ensure Grand did not

host prayer gatherings). Neither the Constitution nor

RLUIPA’s plain text require Grand to show anything

more to ask a federal court to intervene.

3. Beyond RLUIPA’s clear text, the legislative record underlying RLUIPA shows that Congress was concerned not only with the overt burdens imposed by

see also Religious Sisters of Mercy v. Becerra, 55 F.4th 583, 608609 (8th Cir. 2022) (collecting cases applying similar principles to

RFRA).

10

land-use laws but also with the “often covert” burdens

that can be imposed in the zoning process. 146 Cong.

Rec. S7775 (daily ed. July 27, 2000) (joint statement of

Sens. Orrin Hatch and Ted Kennedy on RLUIPA). For

example, evidence before Congress established that “it

is not uncommon for ordinances to establish standards

for houses of worship differing from those applicable

to other places of assembly, such as where they are conditional uses or not permitted in any zone.” H.R. Rep.

No. 106-219 at 19 (emphasis added). And the statute’s

sponsors explained that it does not “relieve religious

institutions from applying for variances”—if they are

“available without discrimination or unfair delay.” 146

Cong. Rec. S7776 (daily ed. July 27, 2000) (joint statement of Sens. Orrin Hatch and Ted Kennedy).

In enacting RLUIPA, Congress also examined a

long line of specific bureaucratic land use abuses

harming religious exercise. Many of these abuses

could not be remedied—at least not without years of

costly administrative and court proceedings—were

Williamson County’s finality requirement imposed.

Take the example of the long-running litigation involving Congregation Etz Chaim, a small Hasidic shul

in the Hancock Park neighborhood of Los Angeles. The

dispute began in 1996 and involves similar circumstances to those at issue here. To serve a community

of orthodox Jews living in Hancock Park, the Congregation purchased a building in a residential neighborhood. To accommodate the needs of many of the Congregation’s elderly and disabled members who could

not feasibly walk to a synagogue on the Sabbath or

Holy Days, the congregation regularly convened a

minyan in the building. Upon application, the City denied the congregation a permit to use the property as

11

a non-residential house of worship, despite exempting

schools from the residential zoning requirements and

allowing all kinds of secular groups to gather in the

same neighborhood. See Protecting Religious Freedom

After Boerne v. Flores (Part II): Hearing Before the

Subcomm. on the Constitution of the H. Comm. on the

Judiciary, 105th Cong. 32-36 (1998) (statement of

Rabbi Chaim Baruch Rubin, Congregation Etz Chaim,

Los Angeles, California). The Congregation’s rabbi testified at the House committee hearing on the first iteration of the RLUIPA bill, the Religious Liberty Protection Act, about the futility of the congregation’s attempts to obtain a permit to gather for worship. Id. at

35-36. He explained that the zoning denial effectively

excluded orthodox Jews from a nine-square-mile area

of the City based on their proximity to a place to gather

for worship. Id. at 33.

The story of Etz Chaim was repeated as the exact

type of bureaucratic abuse Congress intended to end

with RLUIPA. The House Committee on the Judiciary

included the case in the committee report on the Religious Liberty Protection Act. See H.R. Rep. No. 106219 at 22. Senator Kennedy described the case on the

floor when he introduced the bill that became

RLUIPA, 146 Cong. Rec. S6689 (daily ed. July 13,

2000) (statement of Sen. Ted Kennedy), and Representative Hyde included the case in a list of examples

submitted as an extension of his remarks, after enactment but prior to signing by the President, 146 Cong.

Rec. E1566 (daily ed. Sep. 22, 2000) (statement of Rep.

Henry Hyde). Based on this record, it’s clear that Congress intended RLUIPA to protect the Congregation’s

ability to convene a minyan at their property.

12

Following RLUIPA’s enactment, the City and Congregation entered into a settlement agreement allowing the Congregation to convene a minyan on their

property based on RLUIPA’s protections. But after

residents successfully challenged the settlement

agreement as void under state law, the Congregation

was forced to submit yet another application for a conditional use permit while simultaneously attempting

to vindicate its RLUIPA rights in federal court. See

Congregation Etz Chaim v. City of Los Angeles, No. 97cv-5042, 2009 WL 1293257, at *1-5 (C.D. Cal. May 5,

2009) (describing procedural history). Relying on

Willamson County’s finality requirement, the court

held that even after 12 years of litigation and a courtordered consent decree, the Congregation’s RLUIPA

claims still were not ripe because the City might grant

the Congregation’s new application. Id. at *7-9.

But the City again did not approve the Congregation’s application, and instead the Congregation had

to prove its RLUIPA claims in federal court, where it

ultimately prevailed. See Congregation Etz Chaim v.

City of Los Angeles, No. 10-cv-1587, 2011 WL

12472550, at *10 (C.D. Cal. July 11, 2011). It wasn’t

until 2013—after 17 years of administrative review

and litigation and 13 years after RLUIPA’s enactment—that the Congregation ultimately received a

permanent injunction protecting its religious exercise.

See Judgment, Dkt. 187, Congregation Etz Chaim v.

City of Los Angeles, No. 10-cv-1587 (C.D. Cal. May 15,

2013). At least four years of that delay was a direct

result of Williamson County, despite Congress’s direct

attempts to protect the Congregation through

RLUIPA.

13

The legislative record reveals other land-use conflicts that Congress meant for RLUIPA to protect, but

that would not meet Williamson County’s finality requirements. During the Senate floor debate, Senator

Kennedy highlighted a Richmond, Virginia, ordinance

requiring any church wishing “to feed more than thirty

hungry and homeless people to apply for a conditional

use permit at a cost of $1,000.” 146 Cong. Rec. S6689

(daily ed. July 13, 2000) (statement of Sen. Ted Kennedy). “[B]eyond the means of most churches,” that fee

effectively created “a statutorily imposed fee for the

exercise of a basic and fundamental tenet of the Christian faith[.]” Ibid. Yet under the lower court’s analysis

here, a church would not have a ripe RLUIPA claim to

challenge this ordinance, since churches could request

a permit that the city may grant—despite that many

churches would give up their ministries altogether in

the face of an application fee they could not pay.

Representative Hyde also highlighted several situations as violative of RLUIPA that would not pass the

lower court’s standard, including one in which a pastor

and his wife received a warning for inviting five college

students over to the pastor’s house for a Bible study

without a permit. 146 Cong. Rec. E1566 (daily ed. Sep.

22, 2000) (statement of Rep. Henry Hyde).

Congress intended broad protections for these religious worshipers under RLUIPA, but Williamson

County’s finality requirement would drastically undermine that result.

14

B. Importing a Williamson County-style

finality requirement into RLUIPA and

Free Exercise law would have untoward

consequences.

Given the unique characteristics of religious land

use, importing a Williamson County-style finality requirement into RLUIPA claims is not only contrary to

RLUIPA’s text and history but likely to be especially

damaging. Experience in the circuits that have taken

this step confirm the point.

1. Williamson County proceeds on the assumption

that zoning authorities, having initially denied a proposed land use, will consider in good faith whether “to

clarify or change [their] decision.” Pakdel, 594 U.S. at

480; see also MacDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340, 353 n.9 (1986) (“Rejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews.”). But that assumption often does not hold true when the proposed land use is

religious.

Rather, the unique characteristics of religious

practice often make it “a uniquely disfavored land

use.” Laycock & Goodrich, 39 Fordham Urb. L.J. at

1039. “In some areas of the country, some churches”

and other houses of worship “are unpopular because of

religious or racial discrimination.” Id. at 1025. Houses

of worship are “especially vulnerable” to “Not In My

Back Yard”—“NIMBY”—resistance, since “the vast

majority of residents know they will never attend a

proposed new church.” Id. at 1032. And houses of worship are “tax exempt, and local officials do not like taking property off the tax rolls.” Id. at 1036.

15

For all these reasons, religious-land-use proposals

often “face hostility in the zoning context.” Laycock &

Goodrich, 39 Fordham Urb. L.J. at 1032, 1036-1037.

And that hostility, paired with a Williamson Countystyle finality rule, is a recipe for suppressing religious

exercise under the guise of holding open avenues for

reconsideration down the line.

2. The egregious facts of this case are Exhibit A,

but they are hardly alone. The abuses that Congress

considered and sought to remedy by enacting RLUIPA

have reappeared, due in large part to lower courts’

grafting of Williamson County onto the statute.

Consider an earlier Sixth Circuit decision, Miles

Christi Religious Order v. Township of Northville, 629

F.3d 533 (6th Cir. 2010). There, the Sixth Circuit applied Williamson County to dismiss a small religious

order’s Free Exercise and RLUIPA claims. Zoning authorities determined that the order’s longstanding use

of a home had “intensified” to the level of “a small

church or place of worship” and thus that the order

would have to “go through the town’s site review process, beginning by submitting a site plan, to ensure”

the property met the heightened requirements. Id. at

542-543 (Batchelder, J., dissenting). But “completing

and submitting the site plan itself” would cost $30,000,

such that the fathers and brothers were “being put to

the choice of either paying for an expensive site plan

or curtailing or eliminating [their] religious activities.”

Id. at 543, 546. And in the meantime, the town was

“[t]hreatening to ticket vehicles parked on the lawn,

conducting surveillance of the religious order, recording license plates and issuing a ticket for a zoning violation.” Id. at 540 (majority).

16

Further, the religious order alleged that the intensity determination was based on discriminatory animus, an allegation supported by the government’s

“troubling” statements at oral argument—for example, “that ‘football parties and tailgate parties’ do not

change ‘the residential nature of the use; whereas,

what they’re doing here, they’re doing religious education and they’re worshipping.’” Miles Christi, 629 F.3d

at 549 (Batchelder, J., dissenting). Even the majority

agreed these statements indicated “an undeveloped

sense for the concept of religious liberty.” Id. at 540.

Still, the court held that the religious order’s Free Exercise and RLUIPA claims were unripe under Williamson County, and that the order must either submit a site plan—at a minimum cost of $30,000—or appeal the intensity determination—effectively requiring an exhaustion of administrative remedies—before

asserting a RLUIPA claim, simply to continue the

same religious exercise it had conducted at the property for years. Id. at 537-542.

Another example is Guatay Christian Fellowship v.

County of San Diego, 670 F.3d 957 (9th Cir. 2011).

There, the plaintiff church held services on its property for 22 years without incident, but was then informed it must undergo a burdensome and cost-prohibitive permitting process to continue using the

building as a church. Specifically, after more than two

decades of unchanged land use, zoning authorities

warned the church that its “continued operation” on

the property was “illegal,” and threatened to “cut all

electrical power to the Church complex” if the church

continued meeting there without obtaining a specialuse permit. Id. at 965. But completing the process of

applying for a special-use permit—including paying

17

the “fees,” resolving the “project issues,” and handling

the “public reviews that had to be completed before a

Use Permit could issue”—would cost the church “between $214,250 and $314,250” and take “approximately fourteen months to three years.” Id. at 967-968.

Nonetheless, applying Williamson County, the Ninth

Circuit dismissed the church’s RLUIPA claim, holding

that because the church had not applied for a specialuse permit, its “RLUIPA claims [were] unripe.” Id. at

976-980.

Miles Christi and Guatay are representative of the

problems inherent in applying Williamson County to

RLUIPA claims, but numerous lower-court decisions

have likewise applied Williamson County in similar

circumstances. See, e.g., Sumana Forest Retreat v.

County of San Diego, No. 24-cv-1196, 2025 WL

1296696, at *1-2, 8 (S.D. Cal. May 5, 2025) (dismissing

RLUIPA claim under Williamson County even after

zoning authority took no action on application for religious retreat center for over two years and stated application would “never” be approved because retreat

center could apply for different type of use permit);

Congregation Anshei Roosevelt v. Planning & Zoning

Bd. of Borough of Roosevelt, 338 F. App’x 214, 215-219

(3d Cir. 2009) (affirming dismissal of RLUIPA claim

under Williamson County where borough zoned preexisting synagogue and yeshiva into noncompliance and

overturned zoning officer’s decision that yeshiva could

continue to operate); Life Covenant Church, Inc. v.

Town of Colonie, No. 14-cv-1530, 2017 WL 4081907, at

*1-9 (N.D.N.Y. Sep. 13, 2017) (dismissing RLUIPA

claim under Williamson County despite church’s submission of numerous applications for building new

place of worship and town’s “repeated delays” over

18

three years and attempt to condition approval on regulating number and timing of worship services and

forbidding weddings and funerals as purportedly “external to church services”); Congregation Rabbinical

College of Tartikov, Inc. v. Village of Pomona, 915 F.

Supp. 2d 574, 597-607 (S.D.N.Y. 2013) (dismissing

RLUIPA claim under Williamson County even though

“troubling” statements by officials indicated that challenged ordinance was passed specifically to exclude

plaintiff Jewish congregation); Cassidy v. City of

Brewer, No. 12-cv-137, 2012 WL 5844897, at *1 & n.3

(D. Me. Nov. 19, 2012) (dismissing RLUIPA claim under Williamson County notwithstanding code enforcement officer’s denial of church tenant’s expansion permit, causing church to discontinue its tenancy and

cease religious services at the location).

These cases fail to grapple with the fact that Williamson County’s finality and exhaustion requirements were designed to determine when a plaintiff

had suffered a particular type of injury—an uncompensated taking. And they well illustrate that importing Williamson County into free-exercise and RLUIPA

claims is not only doctrinally mistaken but practically

harmful.

3. Aside from these cases, the potential consequences of importing Williamson County into the context of religious-land-use claims further show that the

maneuver is untenable.

On the Sixth Circuit’s view, Williamson County applies anytime the government action involves “application of [a] zoning ordinance.” Pet.App.7a. The trouble is that the government is the party that decides

what its zoning ordinances are. Cf. Congregation Anshei Roosevelt, 338 F. App’x at 215 (synagogue “was

19

constructed before the Borough adopted any zoning

regulations, but subsequent zoning ordinances” and

conditions rendered its operation impermissible).

Thus, the Sixth Circuit’s view allows local governments to impose burdens on religious exercise and

then indefinitely forestall judicial review under Williamson County as long as they write the religion-burdening ordinance into their zoning laws, as opposed to

some other part of the municipal code. That makes no

sense and would permit odd and troubling results.

Imagine, for instance, that rather than passing an

ordinance “making religious animal sacrifice unlawful,” Hialeah passed a zoning restriction outlawing animal slaughter but allowing applications for conditional use permits. Church of Lukumi Babalu Aye, Inc.

v. City of Hialeah, 508 U.S. 520, 527 (1993). And instead of carving out exemptions for “licensed establishment[s]” that kill animals “specifically raised for food

purposes” and small commercial butchers, id. at 528,

the City simply granted every other entity a conditional use permit, while issuing the Santería Church

a cease-and-desist letter, thus forcing it to spend years

seeking a permit. Such a scheme is no less violative of

the First Amendment than the religious gerrymander

ruled unconstitutional by this Court in Lukumi. Yet

the Sixth Circuit’s rule would mean the Santería

Church has no federal claim until the end of that potentially years-long process. That cannot be the law.

Or during the COVID-19 pandemic, for example,

this Court was repeatedly forced to intervene in a preenforcement posture to protect religious practitioners

who were being prohibited from gathering for worship—including for “at-home religious exercise” like

20

that Grand seeks to engage in here. Tandon v. Newsom, 593 U.S. 61, 63-65 (2021) (per curiam); see also,

e.g., Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020). As this Court recognized in those

cases, “attending religious services” is conduct “at the

very heart of the First Amendment’s guarantee of religious liberty,” and preventing such attendance, “for

even minimal periods of time, unquestionably constitutes irreparable injury.” Diocese of Brooklyn, 592 U.S.

at 19-20.

Under the Sixth Circuit’s approach, however, governments could have evaded these lawsuits indefinitely simply by embedding the challenged restrictions

into their zoning laws. Such an approach certainly

would have left “land-use policy * * * in local, politically accountable hands.” Pet.App.7a. But it also

would have allowed to continue unabated some of the

“greatest intrusions on civil liberties in the peacetime

history of this country.” Arizona v. Mayorkas, 143

S. Ct. 1312, 1314 (2023) (statement of Gorsuch, J.).

And it would have required religious practitioners to

miss many more instances of “Mass on Sunday or services in a synagogue on Shabbat.” Diocese of Brooklyn,

592 U.S. at 67-68.

Nor is the point limited to direct restrictions on

worship. As long as a religious exercise takes place on

real property, the Sixth Circuit’s rule would seem to

permit municipalities to burden that exercise via zoning restrictions and then indefinitely delay accountability under Williamson County.

But perhaps the oddest application of Williamson

County to religious land use is the very one at issue

here, in a case involving a zoning ordinance preventing a religious practitioner from using his home for

21

communal worship. From Jesus’ disciples in the upper

room, 3 to the private chapels of recusant Catholics in

early modern England, 4 to the house churches of modern China, 5 at-home communal worship has long offered a refuge (even if often an inadequate one) for religious practitioners facing suppression of their public

worship by local authorities. The lower court’s decision

allows governments to ban even this core outlet for religious practice, with no opportunity for a timely federal remedy.

II. Applying

Takings

Clause

finality

requirements to free-exercise claims is a

distortion stemming from Smith.

The logic for transplanting a Takings Clause rule

into RLUIPA has some appeal: both Williamson

County and RLUIPA concern land use.

The problem is that the existence of a land-use-specific religious freedom statute is itself something of an

accident of history. RLUIPA resulted from this Court’s

decisions in Smith and Boerne, which forced Congress

to shunt its protections against state interference with

religious exercise into a statute addressing land use

and prisons only. To somehow conclude that Congress

intended to brand religious land use as categorically

different from all other religious exercise is therefore

3

E.g., Mark 14:12-16.

Dom Bede Camm, Forgotten Shrines: An Account of Some Old

Catholic Halls and Families in England and of Relics and Memorials of the English Martyrs (1910).

4

5

E.g., Shu Han Liu v. Holder, 718 F.3d 706, 707-708 (7th Cir.

2013); Easten Law, The Church in China Isn’t What You Think,

Plough Magazine, Mar. 25, 2026, https://perma.cc/U3DE-VBF7.

22

mistaken, and in effect permits Smith to continue to

distort the law.

In Employment Division v. Smith, this Court held

that certain laws burdening religious exercise that are

“neutral” and “generally applicable” are subject only to

rational basis review. 494 U.S. 872, 878 (1990). Congress responded by enacting the Religious Freedom

Restoration Act (RFRA) to fully restore the pre-Smith

rule that federal, state, and local governments may

only substantially burden religious exercise if doing so

furthers a compelling interest by the least restrictive

means. Gonzales v. O Centro Espírita Beneficente

Uniao do Vegetal, 546 U.S. 418, 430 (2006). But in City

of Boerne v. Flores, this Court held RFRA unconstitutional as applied to state and local governments because it exceeded Congress’s enforcement power under

Section 5 of the Fourteenth Amendment. 521 U.S. 507,

533-534 (1997).

Congress “responded” to Smith and Boerne “by enacting RLUIPA pursuant to its Spending Clause and

Commerce Clause authority.” Sossamon v. Texas, 563

U.S. 277, 281 (2011); see 42 U.S.C. 2000cc(a)(2).

RLUIPA “borrows important elements from RFRA,”

Sossamon, 563 U.S. at 281, imposing “the same general test as RFRA but on a more limited category of

governmental actions,” Hobby Lobby, 573 U.S. at 695696; see also H.R. Rep. No. 106-219 at 13 (different

“means” but same “ends” as RFRA). In other words,

Congress chose local land-use actions as a category of

government action to specifically regulate only because it was first constrained to look for narrower categories by this Court. Boerne forced Congress to rely

23

on enumerated powers outside its Section 5 enforcement power to “target[ ] ” this particular “area[ ] of

state and local action.” Sossamon, 563 U.S. at 281.

The legislative record bears this out. “Mindful of

the limitations enunciated by the Court in Boerne,”

Congress turned to “well settled sources of Congressional authority for the protection of religious exercise.” H.R. Rep. No. 106-219 at 12 (determining that,

“[a]fter the Boerne decision, the power of Congress in

the area of religious liberty is limited to the spending

power, regulating interstate commerce, and remedying state infringements on due process, equal protection, or the privileges and immunities of citizenship”).

Congress endeavored to “follow[ ] the Court’s directive

in Boerne to aim legislation * * * at certain laws

where there is a significant likelihood of unconstitutionality.” Ibid. Local land-use regulation was among

them, since the “evidence strongly indicate[d] a pattern of abusive and discriminatory actions by land-use

authorities who have imposed substantial burdens on

religious exercise.” Id. at 17. But Congress’s fundamental goal in protecting religious land use specifically was to protect free exercise generally, to the

greatest degree it could, since Congress believed that

the “ability to assemble for worship” is “[a]t the very

core of religious liberty.” Id. at 18; see also 42 U.S.C.

2000cc-3 (“broad protection of religious exercise, to the

maximum extent permitted by * * * the Constitution”).

To the extent, then, that decisions like the one below are influenced by a view that religious-land-use

claims under RLUIPA are somehow fundamentally

different from other varieties of religious freedom

claims, the ultimate culprit is Smith, which occasioned

24

Congress’s enactment of a land-use-specific free-exercise statute in the first place and which has confounded First Amendment jurisprudence for decades.

Smith has many problems. For starters, it “paid

shockingly little attention to the text of the Free Exercise Clause. Instead of examining what readers would

have understood its words to mean when adopted, the

opinion merely asked whether it was ‘permissible’ to

read the text to have the meaning that the majority

favored.” Fulton, 593 U.S. at 564 (Alito, J., concurring)

(quoting Smith, 494 U.S. at 878). Spurred by Smith’s

surprising incuriosity, “scholars have explored the

subject in great depth”—and to near-round reproach.

Id. at 554, 612 (Alito, J., concurring) (examining original-meaning efforts from “the country’s most distinguished scholars of the Religion Clauses”). Tellingly,

since Smith, this Court has repeatedly refused to expand its rule broadly to various categories of free-exercise cases—for example, church autonomy, Hosanna-Tabor, 565 U.S. at 190, and otherwise available

public benefits, Carson v. Makin, 596 U.S. 767, 780

(2022). But as five Justices have acknowledged, such

tonics do not detract from the ongoing need to reevaluate Smith. See Fulton, 593 U.S. at 543 (Barrett, J.,

joined by Kavanaugh, J., concurring) (describing

Smith’s rule as a First Amendment aberration); id. at

545-546 (Alito, J., joined by Thomas and Gorsuch, JJ.,

concurring) (“fundamentally wrong”).

25

Whether or not this Court ultimately revisits

Smith—or, for that matter, Boerne 6—it should at minimum not allow a decision that was wrong in itself to

spawn further distortion. Here, that means undoing

the lower court’s erroneous importation of Williamson

County’s finality requirement into RLUIPA’s independent protections for religious land use.

CONCLUSION

The decision below should be reversed.

6

See, e.g., Christopher R. Green, Clarity and Section Five, 39

Notre Dame J.L. Ethics & Pub. Pol’y 147, 149-157 (2025) (cataloging “six big problems” in Boerne’s Section 5 analysis); Christopher W. Schmidt, Originalism and Congressional Power to Enforce the Fourteenth Amendment, 75 Wash. & Lee L. Rev. Online

33, 37 (2018) (“Considerable evidence shows that the history of

the framing and ratification of the Fourteenth Amendment reflects an understanding of the enforcement power that is less deferential to Court-developed rules of constitutional interpretation

than the model of the Section 5 power * * * offered in Boerne.”);

Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev, 153, 194 (1997)

(“The historical record shows that the framers of the [Fourteenth]

Amendment expected Congress, not the Court, to be the primary

agent of its enforcement, and that Congress would not necessarily

consider itself bound by Court precedents in executing that function.”); William D. Araiza, Arming the Second Amendment and

Enforcing the Fourteenth, 74 Wash. & Lee L. Rev. 1801, 1811

(2017) (exploring “the difficulty the Court may face if and when

it confronts legislation enforcing the Second Amendment” under

Boerne’s standard); William Baude, Problems with Boerne v. Flores, Divided Argument (May 15, 2026), https://perma.cc/7T63JNW8 (surveying four originalist objections).

26

Respectfully submitted.

JOSEPH C. DAVIS

Counsel of Record

LORI H. WINDHAM

MICHAEL J. O’BRIEN

ANDREA R. BUTLER

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

(202) 955-0095

jdavis@becketfund.org

Counsel for Amicus Curiae

SEPTEMBER 2026