Hilo Bay Marina, LLC v. State. Concurring Opinion of the Court by Eddins, J., with Whom McKenna and Devens, JJ., Join. Concurring and Dissenting Opinion by Devens, J.
Hilo Bay Marina, LLC v. State. Concurring Opinion of the Court by Eddins, J., with Whom McKenna and Devens, JJ., Join. Concurring and Dissenting Opinion by Devens, J.
Hilo Bay Marina, LLC v. State. Concurring Opinion of the Court by Eddins, J., with Whom McKenna and Devens, JJ., Join. Concurring and Dissenting Opinion by Devens, J.
Opinion
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
12-SEP-2025
08:56 AM
Dkt. 19 OP
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
HILO BAY MARINA, LLC and KEAUKAHA MINISTRY LLC,
Plaintiffs-Appellants,
vs.
STATE OF HAWAI‘I; BOARD OF LAND AND NATURAL RESOURCES,
STATE OF HAWAI‘I,
Defendants-Appellees.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CAAP-XX-XXXXXXX; CASE NO. 3CCV-XX-XXXXXXX)
SEPTEMBER 12, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.;
WITH EDDINS, J., CONCURRING SEPARATELY,
WITH WHOM McKENNA AND DEVENS, JJ., JOIN;
AND DEVENS, J., ALSO CONCURRING AND DISSENTING
OPINION OF THE COURT BY GINOZA, J.
I. INTRODUCTION
This appeal arises from a 1922 Land Patent issued by
the Territory of Hawai‘i (Territory) to the trustee of a
religious organization for certain lands located on Hawai‘i
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Island (the Property).1 The Land Patent contains a deed
restriction that the Property must be used “for Church purposes
only” and that, if the Property is used for other purposes, the
land grant is voided and the Property reverts to the Territory
(Deed Restriction).
Following the initial 1922 conveyance, the Property
was transferred to different owners via private land
transactions that occurred in 1988, 2000, and 2015, each
referencing the original Land Patent. There is no dispute that
the Deed Restriction and reversionary interest carried over with
each transaction.
Plaintiffs-Appellants Hilo Bay Marina, LLC (Hilo Bay)
and Keaukaha Ministry, LLC (Keaukaha Ministry) (collectively,
Appellants) are the current owners of the Property.2 Appellants
filed this action against Defendants-Appellees State of Hawai‘i
and the State of Hawai‘i Board of Land and Natural Resources
(collectively, the State) in the Circuit Court of the Third
Circuit3 (Circuit Court), asserting that the State refuses to
remove the Deed Restriction and continues to assert that it is
1 The Property encompasses present day Tax Map Key (TMK) Numbers
(3)2-1-014:25, 29, 30, 31, 60 and 74.
2 Hilo Bay owns TMK Nos. (3)2-1-014:29, 30, 31, 60, and 74 and
Keaukaha Ministry owns TMK No. (3)2-1-014:25.
3 The Honorable Henry T. Nakamoto presided.
2
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
enforceable. Appellants contend that the Deed Restriction is
void under Hawai‘i Revised Statutes (HRS) § 515-6(b) (2018);4
violates the Hawai‘i Establishment Clause in article I, section 4
of the Hawai‘i Constitution;5 and violates the Federal
Establishment Clause in the First Amendment to the United States
Constitution.6
The parties filed cross-motions for summary judgment
(MSJ) in the Circuit Court. The Circuit Court entered summary
4 HRS § 515-6(b) (2018) provides that:
(b) Every condition, restriction, or prohibition,
including a right of entry or possibility of reverter, that
directly or indirectly limits the use or occupancy of real
property on the basis of race, sex, including gender
identity or expression, sexual orientation, color,
religion, marital status, familial status, ancestry,
disability, age, or human immunodeficiency virus infection
is void, except a limitation, on the basis of religion, on
the use of real property held by a religious institution or
organization or by a religious or charitable organization
operated, supervised, or controlled by a religious
institution or organization, and used for religious or
charitable purposes.
(Emphasis added.) The emphasized portion of the statute is referred to
as the “exemption clause.”
5 Article I, section 4 of the Hawai‘i Constitution provides in
relevant part that: “No law shall be enacted respecting an establishment of
religion, or prohibiting the free exercise thereof[.]”
Appellants’ Second Amended Complaint also alleged that the Deed
Restriction violated article VII, section 4 of the Hawai‘i Constitution, which
states in relevant part that: “No grant shall be made in violation of Section
4 of Article I of this constitution.” Article VII, section 4 is titled
“Appropriations For Private Purposes Prohibited.” However, on appeal,
Appellants do not raise any issue under article VII, section 4 of the Hawai‘i
Constitution.
6 The Federal Establishment Clause provides that: “Congress shall
make no law respecting an establishment of religion[.]” U.S. Const. amend.
I, § 1.
3
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
judgment for the State, concluding that the Territory’s sale of
government lands with deed restrictions was an early form of
use-zoning; and that the Deed Restriction in this case did not
violate any of the laws asserted by Appellants.
Appellants appealed to the Intermediate Court of
Appeals (ICA). We granted transfer to this court.
We conclude that the State’s enforcement of the Deed
Restriction violates the Hawai‘i Establishment Clause in article
I, section 4 of the Hawai‘i Constitution. We therefore reverse
the Circuit Court’s Final Judgment on those grounds.
II. BACKGROUND
A. Factual Background
In 1922, Governor Wallace Farrington sold the 3.99-
acre Property via Land Patent No. 8039 to Heber J. Grant,
Trustee for the Church of Jesus Christ of Latter-Day Saints (LDS
Church). The Land Patent stated in part:
By this Patent the Governor of the Territory of Hawaii, in
conformity with the laws of the United States of America
and of the Territory of Hawaii, and in conformity with the
provisions of Section 73 of the Hawaiian Organic Act, and
in pursuance of the provisions of Section 357 of the
Revised Laws of the Territory of Hawaii of 1915, makes
known to all men that he has this day granted and confirmed
unto HEBER J. GRANT, TRUSTEE In Trust for the Church of
Jesus Christ of Latter-Day Saints for the consideration of
TWENTY Dollars, $20.00, paid into the Treasury, all of the
land situate at KEAUKAHA, WAIAKEA in the District of SOUTH
HILO Island of HAWAII bounded and described as follows[.]
(Formatting altered.) The Land Patent further contained the
Deed Restriction, which stated:
4
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Subject to the following:
The land covered by this Grant is to be used for
Church purposes only. In the event of its being used for
other than Church purposes, this Grant shall become void
and the land mentioned herein shall immediately revert to
and revest in the Territory of Hawaii[.]
(Emphases added.) The Land Patent was signed by Governor
Farrington and the Commissioner of Public Lands.
On December 16, 1988, the LDS Church conveyed the
Property to Deseret Title Holding Corporation by Warranty Deed.
On September 6, 2000, Property Reserve, Inc., formerly
known as Deseret Title Holding Corporation, conveyed the
Property to Hilo Bay by Quitclaim Deed.7
On May 5, 2015, Hilo Bay conveyed a portion of the
Property, TMK No. (3)2-1-014:25, to Keaukaha Ministry by
Warranty Deed.8
Appellants claim, without dispute from the State, that
they are the fee-simple owners of the Property. They assert
that after years of attempted negotiations with the State, they
filed this lawsuit seeking a ruling that the Deed Restriction is
invalid and/or unenforceable.
7 The 2000 Quitclaim Deed to Hilo Bay was recorded with the State
of Hawai‘i Bureau of Conveyances on September 6, 2000.
8 The 2015 Warranty Deed to Keaukaha Ministry was recorded with the
State of Hawai‘i Bureau of Conveyances on May 5, 2015.
5
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
The State defends the validity of the Deed
Restriction, asserting its right to enforce it under the Land
Patent.
B. Circuit Court Proceedings
1. Appellants’ Complaint(s)
On April 5, 2022, Appellants filed their Complaint for
Declaratory Relief against the State in the Circuit Court.
Appellants subsequently filed two amended complaints.
Appellants’ Second Amended Complaint sought judgment
declaring that the Deed Restriction is unenforceable because it
violates: HRS § 515-6(b); the Hawai‘i Establishment Clause in
article I, section 4 of the Hawai‘i Constitution; article VII,
section 4 of the Hawai‘i Constitution; and the Federal
Establishment Clause in the First Amendment to the United States
Constitution.
Appellants’ Second Amended Complaint at paragraphs 5
and 9 asserts:
5. The State has refused to remove the Church
purposes restriction and reversionary interest from the
properties and continues to claim that the clause is
enforceable and the properties should revert to the State
if the restriction is not satisfied.
. . . .
9. State is the State of Hawaii as successor to the
Territory of Hawaii and purports to hold a reversionary
interest in at least a portion of the Property.
6
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
The State admitted paragraphs 5 and 9 in answering the Second
Amended Complaint.
2. The Parties’ Cross-MSJs
In November 2022, the parties filed cross-MSJs.
a. Appellants’ MSJ
In their MSJ, Appellants argued they were entitled to
summary judgment because there were no genuine issues of
material fact, and the only issues before the court were legal
issues. Appellants asserted four arguments in support of their
MSJ.
First, Appellants asserted that the general voidance
clause in HRS § 515-6(b) voids the Deed Restriction because the
restriction improperly limits the use of real property on the
basis of religion, in violation of the statute. Appellants also
asserted that the exemption clause in HRS § 515-6(b) is
inapplicable because it is a “narrow exception” that allows
religious institutions to restrict the use of their own
property. Appellants argued that because the State imposed the
Deed Restriction - rather than a religious institution - the
Deed Restriction was void at its inception (even though HRS
§ 515-6(b) did not exist at that time).
Second, Appellants asserted that the Deed Restriction
violated the Hawai‘i Establishment Clause, as well as article
VII, section 4 of the Hawai‘i Constitution. Appellants argued
7
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
that the applicable test for violations of the Hawai‘i
Establishment Clause is the three-part test articulated by the
U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971).
Appellants maintained that under Lemon, the Deed Restriction
violated the Hawai‘i Establishment Clause because it (1) lacks a
secular purpose, (2) improperly advances religion, and (3)
excessively entangles the State with religion.
In support of their contention that Lemon applies to
challenges under the Hawai‘i Establishment Clause, Appellants
argued that Lemon has been both applied by this court in Koolau
Baptist Church v. Department of Labor & Industrial. Relations,
68 Haw. 410, 718 P.2d 267 (1986),9 and considered by the Hawai‘i
Legislature during the Constitutional Convention of 1978.
Regarding their latter assertion, Appellants attached excerpts
of the 1978 Constitutional Convention Studies (1978 Studies)
that were drafted by the Legislative Reference Bureau (LRB).
Appellants asserted that the 1978 Studies’ reference to Lemon as
the applicable test under the Federal Establishment Clause
indicates that the Hawai‘i Legislature intended Lemon to be the
applicable test for the Hawai‘i Establishment Clause.
9 Contrary to Appellants’ suggestion, this court’s decision in
Koolau Baptist did not address article I, section 4 of the Hawai‘i
Constitution. Rather, that case dealt with the Federal Establishment Clause.
Koolau Baptist, 68 Haw. at 412, 419, 718 P.2d at 268, 273.
8
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Third, Appellants argued that the Deed Restriction
violated the Federal Establishment Clause, pursuant to the U.S.
Supreme Court’s decision in Kennedy v. Bremerton School
District, 597 U.S. 507 (2022). Appellants asserted that under
Kennedy, the Deed Restriction is unenforceable because it is
unconstitutionally coercive and forces Appellants to participate
in religion or forfeit their ownership rights.
Finally, Appellants argued that the Circuit Court
could not enforce the Deed Restriction because doing so would
constitute state action in violation of the Fourteenth Amendment
to the U.S. Constitution, pursuant to Shelley v. Kraemer, 334
U.S. 1 (1948).
b. The State’s MSJ
In its cross-MSJ, the State asserted that it is
entitled to summary judgment because the Deed Restriction
constitutes a primitive form of use-zoning and a valid exercise
of the State’s police powers. The State asserted three
arguments in support of its MSJ.
First, the State argued that HRS § 515-6(b) did not
void the Deed Restriction. The State claimed that the exemption
clause in HRS § 515-6(b) applied, and that it does not specify
the grantor for purposes of the exemption. Thus, according to
the State, the statute does not prohibit anyone - including the
State and its predecessor Territory - from being the grantor of
9
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
such a restriction, as long as the grantee is the one enumerated
in the exemption.
Second, the State argued that the Deed Restriction
does not violate the Federal Establishment Clause because it
constitutes an exercise of the State’s police power, and
comports with historical use-zoning practices and understandings
of use-zoning practices in 1922, pursuant to Kennedy. In
support of this argument, the State attached multiple exhibits,
including seventeen land patents with similar deed restrictions,
and ten maps dated between 1901-1923, allegedly showing how land
was subdivided and zoned during the territorial days. Sixteen
of the land patent exhibits, including the subject Land Patent,
were issued to churches or their respective trustees, between
the years 1921 and 1925. The State maintained that the
Territorial Government’s early form of use-zoning through sales
of land with deed restrictions is similar to current special-use
permitting, which has passed constitutional muster.
Third, the State argued that the Hawai‘i Establishment
Clause and the Federal Establishment Clause are “coextensive,”
such that the applicable test for analyzing whether the Deed
Restriction passes muster under article I, section 4 of the
Hawai‘i Constitution, is the “historical practices and
understandings test” articulated by the U.S. Supreme Court in
Kennedy. The State further asserted that even if the Lemon test
10
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
applied to the Hawai‘i Establishment Clause - as suggested by
Appellants - the Deed Restriction would still pass
constitutional muster because it was created for the secular
purpose of zoning.
The parties filed cross-memoranda in opposition to
each other’s MSJs, asserting various arguments and
counterarguments, none of which are dispositive to our holding
in this case.
3. The Circuit Court’s Ruling
On March 21, 2023, the Circuit Court entered its
Summary Judgment Order granting summary judgment in favor of the
State, and against Appellants. In this order, the Circuit Court
made findings of fact (FOF) and conclusions of law (COL).
The Circuit Court “found,” at FOF 3, that “[t]he
Territory of Hawai‘i engaged in an early form of use-zoning
through the sale of land with deed restrictions, including the
sale of government lands to religious organizations.”
The Circuit Court also made the following COLs:
HRS § 515-6(b)
10. HRS § 515-6(b) states:
Every condition, restriction, or prohibition,
including a right of entry or possibility of
reverter, that directly or indirectly limits the
use or occupancy of real property on the basis of
race, sex, including gender identity or
expression, sexual orientation, color, religion,
marital status, familial status, ancestry,
disability, age, or human immunodeficiency virus
11
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
infection is void, except a limitation, on the
basis of religion, on the use of real property
held by a religious institution or organization or
by a religious or charitable organization
operated, supervised, or controlled by a religious
institution or organization, and used for
religious or charitable purposes.
Id.
11. HRS § 515-6(b) provides an exemption that permits any
party to reserve a covenant for religious use when
transacting with a religious organization.
12. The [D]eed [R]estriction “for Church purposes only”
is included in the exemption clause of HRS § 515-6(b).
13. HRS § 515-6(b) does not void the [D]eed
[R]estriction.
First Amendment of the United States Constitution
14. The Establishment Clause of the First Amendment of
the United States Constitution does not “‘compel the
government to purge from the public sphere’ anything an
objective observer could reasonably infer endorses or
‘partakes of the religious.’” Kennedy v. Bremerton Sch.
Dist., 142 S. Ct. 2407, 2427 (2022) (internal citations
omitted).
15. The Establishment Clause “must be interpreted by
‘reference to historical practices and understandings.’”
Id. at 2428 (internal citations omitted).
16. The State’s police powers grant it broad discretion
to zone unless a court finds that a policy is “clearly
arbitrary and unreasonable, having no substantial relation
to the public health, safety, morals, or general welfare.”
Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365,
395 (1926).
17. The location of religious institutions is implicated
in zoning practices.
18. The practice of selling government lands with deed
restrictions was an early form of use-zoning and is
interpreted as a historical practice of zoning. Kennedy,
142 S. Ct. at 2427.
19. The [D]eed [R]estriction does not violate the
Establishment Clause of the United States Constitution.
Id.
12
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Article I, § 4 of the Hawai‘i Constitution
20. Article I, § 4 of the [Hawai‘i] Constitution is
coextensive with the First Amendment of the United States
Constitution.
21. The [D]eed [R]estriction does not violate Article I,
§ 4 of the Hawai‘i Constitution for the same reasons that it
does not violate the Establishment Clause of the First
Amendment of the United States Constitution.
22. Because the [D]eed [R]estriction does not violate
Article I, § 4 of the Hawai‘i Constitution, it cannot be
construed as a grant in violation of Article I, § 4; thus,
there is no violation of Article VII, § 4.
23. Even if Article I, § 4 of the Hawai‘i Constitution is
not coextensive with the Establishment Clause of the First
Amendment of the United States Constitution, the [D]eed
[R]estriction passes Constitutional muster under Lemon v.
Kurtzman, which requires that government policies (1) have
a secular purpose; (2) do not endorse or approve of
religion; and (3) do not create excessive entanglement with
religion. 403 U.S. 602, 620 (1971).
24. The [D]eed [R]estriction had a secular purpose of
zoning. Id.
25. The [D]eed [R]estriction allows for any religious
organization to benefit from the [P]roperty, so it does not
endorse or approve one religion over another. Id.
26. Not every form of government surveillance and
monitoring reaches this degree, and routine administrative
or compliance activities do not constitute impermissible
“interference of. . . secular authorities in religious
affairs.” Cammack v. Waihee, 932 F.2d 765, 780 (9th Cir.
1991).
27. The surveillance and monitoring required to enforce
the [D]eed [R]estriction do not present excessive
entanglement because they are no different than that of
what is required to enforce any other zoning regulation.
On April 13, 2023, the Circuit Court entered its Final
Judgment in favor of the State, and against Appellants.
13
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
C. Appellate Proceedings
On April 24, 2023, Appellants appealed to the ICA.
During the briefing period, we granted transfer to this court.
On appeal, Appellants contend that the Circuit Court
erred when it concluded that: (1) the practice of selling
government lands with deed restrictions was an early form of
use-zoning and is interpreted as a historical practice of zoning
(COL 18); (2) HRS § 515-6(b) does not void the Deed Restriction
(COL 13); (3) the Deed Restriction does not violate the Hawai‘i
Establishment Clause for the same reasons that it does not
violate the Federal Establishment Clause (COL 21), and even if
the Hawai‘i Establishment Clause is not coextensive with the
Federal Establishment Clause, the Deed Restriction passes
constitutional muster under Lemon (COL 23); and (4) the Deed
Restriction does not violate the Federal Establishment Clause
(COL 19).
In support of their points of error on appeal,
Appellants raise largely the same arguments and supporting
authority asserted in their MSJ. In brief, Appellants argue
that the State lacks any evidence - or explanatory connection -
to support its claim that the Territory of Hawai‘i used deed
restrictions historically as an early form of use-zoning.
Appellants further assert that HRS § 515-6(b) voids the Deed
Restriction because the restriction limits the use of real
14
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
property on the basis of religion, and the statute’s exemption
clause is inapplicable because the Property is not “held by a
religious institution.”
With respect to their constitutional arguments,
Appellants maintain that Lemon is the controlling test for
challenges under the Hawai‘i Establishment Clause, and that under
Lemon, the Deed Restriction must fail. Appellants also assert
that the Deed Restriction violates the Federal Establishment
Clause under Kennedy and its predecessor Federal Establishment
Clause jurisprudence.
In its responsive appellate briefing, the State
reasserts the arguments it raised in the Circuit Court. The
State contends that the Circuit Court’s Summary Judgment Order
and Final Judgment should be affirmed.
III. STANDARDS OF REVIEW
A. Summary Judgment
We review the Circuit Court’s grant or denial of
summary judgment de novo. Hawaii Cmty. Fed. Credit Union v.
Keka, 94 Hawai‘i 213, 221, 11 P.3d 1, 9 (2000). The standard for
granting a motion for summary judgment is settled:
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
15
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and the inferences drawn therefrom
in the light most favorable to the party opposing the
motion.
Id. (citations and internal quotation marks omitted) (formatting
altered).
We have further explained the burdens of the moving
and non-moving parties on summary judgment as follows:
The burden is on the party moving for summary judgment
(moving party) to show the absence of any genuine issue as
to all material facts, which, under applicable principles
of substantive law, entitles the moving party to judgment
as a matter of law. This burden has two components.
First, the moving party has the burden of producing support
for its claim that: (1) no genuine issue of material fact
exists with respect to the essential elements of the claim
or defense which the motion seeks to establish or which the
motion questions; and (2) based on the undisputed facts, it
is entitled to summary judgment as a matter of law. Only
when the moving party satisfies its initial burden of
production does the burden shift to the non-moving party to
respond to the motion for summary judgment and demonstrate
specific facts, as opposed to general allegations, that
present a genuine issue worthy of trial.
Second, the moving party bears the ultimate burden of
persuasion. This burden always remains with the moving
party and requires the moving party to convince the court
that no genuine issue of material fact exists and that the
moving part is entitled to summary judgment as a matter of
law.
French v. Hawaii Pizza Hut, Inc., 105 Hawai‘i 462, 470, 99 P.3d
1046, 1054 (2004) (citation and emphasis omitted). This court
has prescribed detailed guidance regarding how a moving party
may satisfy its initial burden on a motion for summary judgment,
providing that:
a summary judgment movant may satisfy [their] initial
burden of production by either (1) producing admissible
evidence to show there was no genuine issue of material
fact, or (2) showing that the non-moving party cannot carry
16
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
[their] burden of proof at trial. . . . [T]he movant
generally cannot support its initial burden of production
by pointing solely to the non-moving party's lack of
evidence if discovery has not concluded.
Ralston v. Yim, 129 Hawai‘i 46, 48, 292 P.2d 1276, 1278 (2013)
(citation omitted).
Here, the Circuit Court made findings of fact, but we
are reviewing that court’s summary judgment rulings.10 The
Circuit Court did not have an evidentiary hearing. Therefore,
we are not bound by the Circuit Court’s “findings” even if they
are unchallenged.11 See Malulani Grp., Ltd. v. Kaupo Ranch,
10 Appellants do not challenge the Circuit Court’s FOF 3 (“The
Territory of Hawai‘i engaged in an early form of use-zoning through the sale
of land with deed restrictions, including the sale of government lands to
religious organizations”). Appellants’ four points of error cite to and
challenge the Circuit Court’s “conclusions of law.” However, Appellants
treat COL 18 (“The practice of selling government lands with deed
restrictions was an early form of use-zoning and is interpreted as a
historical practice of zoning”) as a “finding of fact,” arguing that there is
no “substantial evidence” to support this holding. Under summary judgment
standards, the question is whether there are any genuine issues of material
fact regarding this finding.
11 Hawai‘i Rules of Civil Procedure (HRCP) Rule 56 governs summary
judgment, and provides, in relevant part, that summary judgment:
[s]hall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.
HRCP Rule 56(c) (eff. 2000) (emphasis added). HRCP Rule 52 governs findings
by the court, and provides that: “Findings of fact and conclusions of law are
unnecessary on decisions of motions under Rules 12 or 56 or any other motion
except as provided in subdivisions (b) and (c) of this rule.” HRCP Rule
52(a) (eff. 2000). The purpose of deciding summary judgment motions is to
determine whether material factual disputes exist, not to resolve them. See
Rodriguez v. Nishiki, 65 Haw. 430, 439, 653 P.2d 1145, 1151 (1982) (“It is
not within the province of the trial court at summary judgment to resolve
factual disputes.”); Dalton v. City & Cnty. of Honolulu, 51 Haw. 400, 403
n.2, 462 P.2d 199, 202 n.2 (1969) (“[D]isputed issues of fact cannot be
resolved on summary judgment.” (citation omitted)).
17
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Ltd., 133 Hawai‘i 425, 430 n.4, 329 P.3d 330, 335 n.4 (App. 2014)
(reviewing the circuit court’s grant of summary judgment, and
noting that “because the circuit court was addressing a summary
judgment motion, and did not hold any type of evidentiary
hearing, we apply the usual summary judgment principles and are
not bound by the circuit court’s findings, regardless of whether
those findings are challenged on appeal or not”). Rather, we
apply summary judgment standards, meaning that we review the
record de novo and “[t]he evidence must be viewed in the light
most favorable to the non-moving party[.]” Keka, 94 Hawai‘i at
221, 11 P.3d at 9 (citation and internal quotation marks
omitted). “The burden is on the party moving for summary
judgment (moving party) to show the absence of any genuine issue
as to all material facts, which, under applicable principles of
substantive law, entitles the moving party to judgment as a
matter of law.” French, 105 Hawai‘i at 470, 99 P.3d at 1054
(citation omitted).
Thus, although it may be helpful for a trial court to make findings
that specific material facts are uncontested, such findings – even if
unchallenged on appeal - do not bind this court nor alter our de novo
standard of review. See 10A Wright & Miller’s Federal Practice & Procedure
§ 2716 (4th ed. 2025) (“In considering an appeal from the disposition of a
Rule 56 motion, the appellate court normally will not have the district
court’s findings of fact and conclusions of law on the motion before it since
Rule 52(a)(3) makes these findings unnecessary on summary judgment motions.”)
(footnotes omitted); see also 17 Indiana L. Encyclopedia Judgment § 111,
Westlaw (database updated July 2025) (“Special findings of fact and
conclusions of law by the trial court in ruling on a summary judgment are not
binding on appeal and do not alter the appellate court’s standard of
review[.]”) (footnotes omitted).
18
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
We hold that findings of fact made by a trial court in
relation to a summary judgment ruling are not binding on appeal,
nor do they alter our de novo standard of review regarding a
summary judgment ruling. Consistent with this holding, we
overrule past decisions to the extent that they treat a trial
court’s unchallenged findings associated with summary judgment
rulings as binding on the appellate court. Accordingly, we
overrule this aspect of the opinions in the following cases:
Bremer v. Weeks, 104 Hawai‘i 43, 63, 85 P.3d 150, 170 (2004)
(reviewing the circuit court’s grant of summary judgment, and
treating unchallenged findings of fact on appeal as binding);
Price v. AIG Hawai‘i Insurance Co., 107 Hawai‘i 106, 108 n.3,
110, 111 P.3d 1, 3 n.3, 5 (2005) (reviewing the circuit court’s
grant of summary judgment and citing the correct de novo
standard of review, but treating an unchallenged finding of fact
on appeal as binding); and ʻŌlelo: The Corporation for Community
Television v. Office of Information Practices, 116 Hawai‘i 337,
348-49, 173 P.3d 484, 495-96 (2007) (reviewing the circuit
court’s grant of summary judgment but treating unchallenged
findings of fact on appeal as binding undisputed facts).
B. Statutory Interpretation
Questions of statutory interpretation are questions of law
to be reviewed de novo under the right/wrong standard.
Our statutory construction is guided by the following well
established principles:
19
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
our foremost obligation is to ascertain and give
effect to the intention of the legislature, which is
to be obtained primarily from the language contained
in the statute itself. And we must read statutory
language in the context of the entire statute and
construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression
used in a statute, an ambiguity exists[.]
In construing an ambiguous statute, the meaning of
the ambiguous words may be sought by examining the
context, with which the ambiguous words, phrases, and
sentences may be compared, in order to ascertain
their true meaning. Moreover, the courts may resort
to extrinsic aids in determining legislative intent.
One avenue is the use of legislative history as an
interpretive tool.
This court may also consider the reason and spirit of
the law, and the cause which induced the legislature
to enact it to discover its true meaning.
Lingle v. Hawai‘i Gov’t Emps. Ass’n, AFSCME, Local 152, AFL-CIO,
107 Hawai‘i 178, 183, 111 P.3d 587, 592 (2005) (internal
quotation marks, brackets, and ellipses omitted) (quoting Guth
v. Freeland, 96 Hawai‘i 147, 149-50, 28 P.3d 982, 984-85 (2001)).
C. Constitutional Law
“We answer questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. Thus, we review questions of
constitutional law [de novo] under the right/wrong standard.”
West Maui Resort Partners LP v. Cnty. of Maui, 154 Hawai‘i 121,
132, 547 P.3d 454, 465 (2024) (internal quotation marks omitted)
(quoting Gardens at West Maui Vacation Club v. Cnty. of Maui, 90
Hawai‘i 334, 339, 978 P.2d 772, 777 (1999)).
20
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
“Issues of constitutional interpretation present questions
of law that are reviewed de novo.” Blair v. Harris, 98
Hawai‘i 176, 178, 45 P.3d 798, 800 (2002) (citation
omitted). In construing the constitution, this court
observes the following basic principles:
Because constitutions derive their power and
authority from the people who draft and adopt them,
we have long recognized that the Hawaii Constitution
must be construed with due regard to the intent of
the framers and the people adopting it, and the
fundamental principle in interpreting a
constitutional provision is to give effect to that
intent. This intent is to be found in the instrument
itself.
The general rule is that, if the words used in a
constitutional provision are clear and unambiguous,
they are to be construed as they are written. In
this regard, the settled rule is that in the
construction of a constitutional provision the words
are presumed to be used in their natural sense unless
the context furnishes some ground to control,
qualify, or enlarge them.
Moreover, a constitutional provision must be
construed in connection with other provisions of the
instrument, and also in the light of the
circumstances under which it was adopted and the
history which preceded it.
Hanabusa v. Lingle, 105 Hawai‘i 28, 31-32, 93 P.3d 670, 673-
74 (2004) (brackets omitted) (quoting Blair, 98 Hawai‘i at
178-79, 45 P.3d at 800-01).
IV. DISCUSSION
The Circuit Court granted summary judgment for the
State, holding that the Territory’s sale of government land with
deed restrictions was an early form of use-zoning. The Circuit
Court further concluded that the Deed Restriction was not voided
by HRS § 515-6(b), and instead came within the exemption of that
statute, and that the Deed Restriction did not violate the
Hawai‘i Establishment Clause or the Federal Establishment Clause.
21
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
In this appeal, Appellants challenge each of these Circuit Court
rulings. The parties agree that this case should be decided on
summary judgment and based on the record before this court.
We conclude that HRS § 515-6(b) is not dispositive in
this case. Rather, the statute’s applicability depends on the
constitutionality of the Deed Restriction. We further conclude
that, given the evidence in the record, the sale of the Property
in 1922 with the Deed Restriction was not an early form of use-
zoning. The record does not support the Circuit Court’s
determination in this regard. Ultimately, we hold that the
State’s action to enforce the Deed Restriction, requiring that
the Property be used “for Church purposes only” or else the
Property would revert to the State, violates Hawai‘i’s
Establishment Clause in article I, section 4 of the Hawai‘i
Constitution. We resolve this appeal based on the Hawai‘i
Constitution. In doing so, we need not consider the Federal
Establishment Clause.
A. Hawai‘i’s Historical and Legal Landscape
The subject Land Patent No. 8039 was issued by the
Territory of Hawai‘i in 1922, to Heber J. Grant, Trustee for the
LDS Church. A brief overview of the relevant historical and
legal landscape is helpful to provide context for the 1922 Land
Patent and the analysis of the issues before this court.
22
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
On July 7, 1898, the United States annexed Hawai‘i with
the passage of the Newlands Joint Resolution. See Newlands
Resolution, H.R.J. Res. 259, 55th Cong., 30 Stat. 750 (1898)
(Newlands Resolution). The Newlands Resolution “cede[d] and
transfer[red] to the United States the absolute fee and
ownership of all public, Government or Crown lands, . . .
belonging to the Government of the Hawaiian Islands, together
with every right and appurtenance thereunto appertaining[.]”
Newlands Resolution, at 750; see Rice v. Cayetano, 528 U.S. 495,
505 (2000); Trustees of the Off. of Hawaiian Affs. v. Yamasaki,
69 Haw. 154, 159, 737 P.2d 446, 449 (1987). The Newlands
Resolution also provided that:
The existing laws of the United States relative to public
lands shall not apply to such lands in the Hawaiian
Islands; but the Congress of the United States shall enact
special laws for their management and disposition[.]
Newlands Resolution, at 750.
Less than two years later, on April 30, 1900, the
United States promulgated the Organic Act, which established
Hawai‘i as an incorporated territory of the United States. Act
of April 30, 1900, Pub. L. No. 56-339, 31. Stat. 141 (Organic
Act); see Rice, 528 U.S. at 505; Downes v. Bidwell, 182 U.S.
244, 305 (1901) (White, J., concurring) (“[O]n April 30, 1900,
an act for the government of Hawaii was approved, by which the
23
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Hawaiian islands were given the status of an incorporated
territory[.]”).
The Organic Act created a government for the Territory
of Hawai‘i and established the applicable law for the Territory.
Section 5 of the Organic Act provided that “the Constitution . .
. shall have the same force and effect within the said Territory
as elsewhere in the United States[.]” Organic Act, at 141-42.
Section 6 of the Organic Act stated that “the laws of Hawaii not
inconsistent with the Constitution or laws of the United States
or the provisions of this Act shall continue in force, subject
to repeal or amendment by the legislature of Hawaii or the
Congress of the United States.” Id. at 142.
Given section 5 of the Organic Act and its legislative
history, the U.S. Supreme Court recognized that “Congress thus
expressed a strong desire to apply the Constitution [to the
Territory of Hawai‘i] without qualification.” Duncan v.
Kahanamoku, 327 U.S. 304, 318 (1946). For almost sixty years –
between the passage of the Organic Act in 1900 and until
Hawai‘i’s admission as a state in August 1959 - the Territory of
Hawai‘i was governed by the Constitution of the United States,
the Organic Act (as amended), and the Revised Laws of Hawai‘i
(RLH) that were not inconsistent with the U.S. Constitution or
the Organic Act.
24
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Section 73 of the Organic Act (1915) entitled
“Commissioner of Public Lands” granted authority to the
Commissioner of Public Lands (Commissioner) and the Board of
Public Lands (Board) to manage and dispose of government and
crown lands classified as “public lands.” See Organic Act,
§ 73, printed as amended in RLH (1915) at 47-51 (Organic Act
(1915)). In 1922, when the Land Patent in this case was issued,
Section 73 of the Organic Act (1915) provided in relevant part:12
The Commissioner may also, with [the approval of the
Governor], issue, for a nominal consideration, to any
church or religious organization, or person or persons or
corporation representing it, a patent for any parcel of
public land occupied continuously for not less than five
years heretofore and still occupied by it as a church site
under the laws of Hawaii.
No sale of lands for other than homestead purposes,
except as herein provided, and no exchange by which the
Territory shall convey lands exceeding either forty acres
in area or five thousand dollars in value shall be made.
No lease of agricultural lands exceeding forty acres in
area, or of pastoral or waste lands exceeding two hundred
acres in area, shall be made without the approval of two-
thirds of the board of public lands which is hereby
constituted, the members of which are to be appointed by
the governor as provided in section eighty of this Act, and
until the legislature shall otherwise provide said board
shall consist of six members and its members be appointed
for terms of four years: Provided, however, That the
Commissioner may, with the approval of said board, sell for
residence purposes lots and tracts, not exceeding three
acres in area, and that sales of government lands may be
made upon the approval of said board whenever necessary to
locate thereon railroad rights of way, railroad tracks,
side tracks, depot grounds, pipe lines, irrigation ditches,
pumping stations, reservoirs, factories and mills and
appurtenances thereto, including houses for employees,
mercantile establishments, hotels, churches, and private
12 The Organic Act was amended multiple times. In 1922, the
applicable version of Section 73 was not divided into lettered paragraphs.
Rather, paragraph demarcations for Section 73 were added in the 1925 version
of the Organic Act, with materially similar language as the prior version of
Section 73. For reference, the relevant paragraph in the 1925 version of the
Organic Act is Section 73(k).
25
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
schools; and all such sales shall be limited to the amount
actually necessary for the economical conduct of such
business or undertaking: Provided further, That no exchange
of government lands shall hereafter be made without the
approval of two-thirds of the members of said board, and no
such exchange shall be made except to acquire lands
directly for public uses.
Id. at 49-50 (emphases added).
Portions of Section 73 of the Organic Act (1915)
appear to have been codified in RLH §§ 357 and 358 (1915).
In 1922, RLH § 357 (1915) addressed transfer of land
to churches or religious organizations, stating:
Preference right to purchase, given when. Patents to
churches, etc.
. . . .
The commissioner may also, with [the approval of the
Governor], issue, for a nominal consideration, to any
church or religious organization, or person or persons or
corporation representing it, a patent for any parcel of
public land occupied continuously for not less than five
years heretofore and still occupied by it as a church site
under the laws of Hawaii. [Org. Act, pt. of s. 73.]
(Emphases added.)
In turn, in 1922, RLH § 358 (1915) appears to have
codified other parts of Section 73 of the Organic Act. RLH
§ 358 (1915) stated:
Sales, exchanges, and leases: purposes, limitations.
Exchanges: how authorized. No sale of lands for other than
homestead purposes, except as in this chapter provided, and
no exchange by which the Territory shall convey lands
exceeding either forty acres in area or five thousand
dollars in value shall be made. No lease of agricultural
lands exceeding forty acres in area, or of pastoral or
waste lands exceeding two hundred acres in area, shall be
made without the approval of two-thirds of the board of
public lands: Provided, however, that the commissioner may,
with the approval of the board of public lands, sell for
residence purposes lots and tracts, not exceeding three
acres in area, and that sales of government lands may be
made upon the approval of said board whenever necessary to
locate thereon railroad rights of way, railroad tracks,
26
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
side tracks, depot grounds, pipe lines, irrigation ditches,
pumping stations, reservoirs, factories and mills and
appurtenances thereto, including houses for employees,
mercantile establishments, hotels, churches, and private
schools, and all such sales shall be limited to the amount
actually necessary for the economical conduct of such
business or undertaking: Provided, further, that no
exchange of government lands shall hereafter be made
without the approval of two-thirds of the members of said
board, and no such exchange shall be made except to acquire
lands directly for public uses. [Org. Act, pt. of s. 73.]
(Emphases added.)
As expressly referenced in the Land Patent issued to
the LDS Church in this case, the Property was granted “in
conformity with the provisions of Section 73” of the Organic
Act, and “in pursuance of the provisions of Section 357 of the
Revised Laws of the Territory of Hawaii of 1915[.]”
Thirty-seven years after the Land Patent in this case
was issued, Hawai‘i became a state on August 21, 1959. See
Hawai‘i Admission Act, Pub. L. No. 86-3, § 7(c), 73 Stat. 4, 8
(1959) (Admission Act); Proclamation No. 3309, 35 Fed. Reg. 6868
(Aug. 21, 1959). Hawai‘i’s Constitution became effective that
same date, which included the Hawai‘i Establishment Clause,
stating in relevant part: “No law shall be enacted respecting an
establishment of religion[.]” Haw. Const. art. I, § 3 (1959).
B. The Evidence Does Not Establish That Sale of the Property
with the Deed Restriction Was an Early Form of Use-Zoning
In its summary judgment ruling, in FOF 3 and COL 18,
the Circuit Court found that the practice of selling government
lands with deed restrictions was an early form of use-zoning and
27
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
interpreted it as a historical practice of zoning. Appellants
argue that the record lacks any evidence, let alone substantial
evidence, to support the State’s claim that the Territory of
Hawai‘i utilized deed restrictions as a form of early zoning. We
agree. The evidence in the record does not support the Circuit
Court’s FOF 3 or COL 18.
As part of its MSJ, the State submitted sixteen land
patents issued to churches or religious associations (including
for the subject Property) and one land patent issued to an
individual for a cemetery site, all issued between 1921 to 1925.
Each of the land patents contained a restriction similar to the
Deed Restriction in this case; that is, the land was to be used
for church purposes (or church and cemetery purposes) only, or
the grant would become void and the land would revert to the
Territory. The State also attached ten maps to its MSJ, all of
which are titled “Hawaii Territory Survey,” with references to
different locations on the islands of Hawai‘i, Maui, Kaua‘i,
Moloka‘i or O‘ahu. Some of the maps indicate they relate to
homesteads, one map indicates it refers to government lots and
remnants, and other maps have no such designation or are
illegible. To the extent that dates on the maps can be read
(not all are legible), they appear to be dated between 1901 and
1923. The State relies upon these exhibits to purportedly show
how land was subdivided and zoned by the territorial government.
28
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
All of the State’s exhibits were submitted pursuant to
the declaration of the State’s counsel, who attested that
counsel had “personal knowledge of the facts contained in this
declaration and [I] am competent to testify to them.” Counsel’s
declaration then stated that each exhibit was a true and correct
copy of the listed land patent or territorial map. No other
information was provided. Given that each exhibit is a land
patent or territorial map from about a hundred years ago, and
neither counsel nor any other witness provides any basis to
establish personal knowledge or that counsel was competent to
testify to the matters in the declaration, it is doubtful that
the exhibits were admissible under Rule 56(e) of the Hawai‘i
Rules of Civil Procedure (HRCP).13 Nonetheless, Appellants did
not challenge admission of the State’s exhibits in the Circuit
Court and make no such argument in this appeal. Therefore,
Appellants have waived any challenge to the admission of the
State’s exhibits and we will consider them. See Querubin v.
Thronas, 107 Hawai‘i 48, 61 n.5, 109 P.3d 689, 702 n.5 (2005);
Price, 107 Hawai‘i at 110-12, 111 P.3d at 5-7 (holding that the
13 HRCP Rule 56(e) states in relevant part:
(e) Form of affidavits; further testimony; . . .
Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated
therein. Sworn or certified copies of all papers or parts
thereof referred to in an affidavit shall be attached
thereto or served therewith.
29
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
plaintiff waived his argument that depositions in support of
summary judgment were inadmissible, where plaintiff failed to
challenge admissibility in the circuit court).
The land patents submitted by the State provide
evidence that the Territorial Government sold property to other
churches or religious institutions in a manner similar to the
Property in this case. However, these land patents do not show
or reflect an early form of use-zoning, as alleged by the State.
Indeed, they do not demonstrate that territorial property was
sold for other uses authorized under the Organic Act (1915) or
RLH § 358 - such as for homestead, residence, employee housing,
mercantile establishments, hotels, or school uses - in a similar
way as churches. There is no land patent in evidence for these
other uses, and thus nothing to establish that sales of land for
these other uses were accompanied with restrictions similar to
the Deed Restriction in this case. In short, sixteen of the
land patents only show a pattern of how territorial land in the
1920s was sold to churches with restrictions and does not
establish that land patents were used as an “early form of use-
zoning,” as found by the Circuit Court.
Additionally, the maps submitted by the State are
illegible in many respects and are by no means self-explanatory.
It can be discerned that the maps show certain areas on the
islands of Hawai‘i, Maui, Kaua‘i, Moloka‘i or O‘ahu with varying
30
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
types of lots sketched in; some maps indicate they relate to
homesteads, one indicates it related to government lots and
remnants, another has a line stating “Kainalo School Lot
Survey”, and others have no such indication. There simply is no
clarity or consistency as to what the maps actually show, the
purpose for which they were prepared, where they were obtained,
or whether they in fact show an “early form of use-zoning” by
the Territorial Government in the 1920s. Further, nothing in
the maps indicate restrictions on the use of properties for
specified purposes or that properties could revert to the
Territory.
The State prevailed on its summary judgment motion and
thus was the movant. As the movant, the State had the initial
burden of proof and we must view the State’s exhibits in the
light most favorable to the Appellants. French, 105 Hawai‘i at
470, 99 P.3d at 1054; Ralston, 129 Hawai‘i at 48, 292 P.2d at
1278. Here, based on summary judgment standards, the State did
not carry its burden to establish that the practice of selling
government lands with deed restrictions was an early form of
use-zoning. We need not address Appellants’ other arguments
related to this conclusion. The Circuit Court erred in its FOF
3 and COL 18 rulings for the State.
31
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
C. Statutory Analysis Under HRS § 515-6(b)
Appellants argue that the Deed Restriction on the
Property should be voided based on, alternatively, HRS § 515-
6(b), the Hawai‘i Establishment Clause, or the Federal
Establishment Clause. “Courts generally will not decide a
constitutional issue unless necessary to the determination of
the merits of the cause under consideration.” Smith v. Smith,
56 Haw. 295, 304, 535 P.2d 1109, 1116 (1975) (citations
omitted); see also State v. Lo, 66 Haw. 653, 657, 675 P.2d 754,
757 (1983) (“[I]f a case can be decided on either of two
grounds, one involving a constitutional question, the other a
question of statutory construction or general law, this court
will decide only the latter.” (citation, ellipsis, and brackets
omitted)); State v. Poaipuni, 98 Hawai‘i 387, 401, 49 P.3d 353,
367 (2002) (Moon, C.J., concurring) (“It is well-settled that
important questions regarding the interpretation of
constitutional provisions should ordinarily be decided only
where such decisions are necessary to the resolution of a case.”
(citation omitted)).
Here, given Appellants’ alternative grounds for
challenging the Circuit Court’s decision upholding the Deed
Restriction, we first address their arguments under HRS § 515-
32
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
6(b) and conclude they do not prevail on this contention.14 In
granting the State’s MSJ related to HRS § 515-6(b), the Circuit
Court concluded as follows:
10. HRS § 515-6(b) states:
Every condition, restriction, or prohibition,
including a right of entry or possibility of
reverter, that directly or indirectly limits the
use or occupancy of real property on the basis of
race, sex, including gender identity or
expression, sexual orientation, color, religion,
marital status, familial status, ancestry,
disability, age, or human immunodeficiency virus
infection is void, except a limitation, on the
basis of religion, on the use of real property
held by a religious institution or organization or
by a religious or charitable organization
operated, supervised, or controlled by a religious
institution or organization, and used for
religious or charitable purposes.
Id.
11. HRS § 515-6(b) provides an exemption that permits any
party to reserve a covenant for religious use when
transacting with a religious organization.
12. The [D]eed [R]estriction “for Church purposes only”
is included in the exemption clause of HRS § 515-6(b).
13. HRS § 515-6(b) does not void the [D]eed
[R]estriction.
(Emphasis added.)
Appellants challenge the Circuit Court’s ruling on HRS
§ 515-6(b) by arguing that they now own the Property and are not
religious institutions. Thus, they assert, the Property is no
longer “held by a religious institution or organization,” such
that the exemption clause in HRS § 515-6(b) does not apply, and
the statute voids the Deed Restriction. It is undisputed that
14 There is no challenge in this case to the validity of HRS § 515-
6(b), only whether the Circuit Court properly construed it.
33
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
neither Hilo Bay nor Keaukaha Ministry are religious
institutions or organizations, that Keaukaha Ministry does not
conduct religious activity on the Property, and that Keaukaha
Ministry only uses its portion of the Property for cemetery
purposes and not church purposes. There is also nothing in the
record to indicate that Hilo Bay or Keaukaha Ministry are
religious or charitable organizations operated, supervised, or
controlled by a religious institution or organization.
As explained more fully below, we conclude that the
Circuit Court erred in its interpretation, application, and
ruling on HRS § 515-6(b). Appellants are correct that the
record fails to show that the exemption clause in HRS § 515-6(b)
is applicable. Thus, the State should not have prevailed with
respect to HRS § 515-6(b). However, Appellants also cannot
prevail under HRS § 515-6(b), because their argument completely
ignores the requirements under the Deed Restriction. Where it
is undisputed that Appellants are not religious institutions,
they ignore whether they should own the Property in the first
place, given the Deed Restriction. In this case, HRS § 515-6(b)
does not resolve the dispute between the parties.
1. Plain Language of HRS § 515-6(b)
Interpretation of HRS § 515-6(b) is an issue of first
impression and we start with the language of the statute.
34
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Citizens Against Reckless Dev. v. Zoning Bd. of Appeals, 114
Hawai‘i 184, 193, 159 P.3d 143, 152 (2007) (“[T]he fundamental
starting point for statutory interpretation is the language of
the statute itself . . . where the statutory language is plain
and unambiguous, [the court’s] sole duty is to give effect to
its plain and obvious meaning.” (citation omitted)). Moreover,
“[the court] must read statutory language in the context of the
entire statute and construe it in a manner consistent with its
purpose.” Lingle, 107 Hawai‘i at 183, 111 P.3d at 592 (citation
omitted).
HRS § 515-6(b) (2018) governing restrictive covenants
and conditions provides, in relevant part:
Every condition, restriction, or prohibition,
including a right of entry or possibility of reverter, that
directly or indirectly limits the use or occupancy of real
property on the basis of . . . religion . . . is void,
except a limitation, on the basis of religion, on the use
of real property held by a religious institution or
organization or by a religious or charitable organization
operated, supervised, or controlled by a religious
institution or organization, and used for religious or
charitable purposes.
(Emphases added.)
The original version of HRS § 515-6 was passed in 1967
via Act 193.15 The stated purpose of Act 193 was to generally
15 The original iteration of HRS § 515-6(b), adopted in 1967, was as
follows:
(b) Every condition, restriction, or prohibition,
including a right of entry or possibility of reverter,
which directly or indirectly limits the use or occupancy of
real property on the basis of race, color, religion, or
national origin, is void, except a limitation of use on the
basis of religion of real property held by a religious
35
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
prohibit discrimination in connection with real property
transactions:
The purpose of this Act is to secure for all individuals
within the State freedom from discrimination because of
race, color, religion, or national origin in connection
with real property transactions, and thereby to protect
their interest in personal dignity, to make available to
the State their full productive capacities, to secure the
State against domestic strife and unrest, to preserve the
public safety, health, and general welfare, and to promote
the interests, rights and privileges of individuals within
the State.
1967 Haw. Sess. Laws Act 193, § 1 at 194-95.
The Senate Standing Committee Report from 1967,
indicates that the purpose of HRS § 515-6(b)’s exemption clause
was to benefit religious institutions: “Section 6 makes
restrictive covenants void, but this kind of limitation on use
or occupancy of real property is made permissible in exceptions
for the benefit of religious institutions.” S. Stand. Comm.
Rep. No. 298, in 1967 Senate Journal, at 982.
Under HRS § 515-6(b), every restriction that directly
or indirectly limits the use or occupancy of real property on
the basis of religion is void, “except a limitation, on the
institution or organization or by a religious or charitable
organization operated, supervised, or controlled by a
religious institution or organization, and used for
religious or charitable purposes.
1967 Haw. Sess. Laws Act 193, § 6 at 196.
HRS § 515-6(b) was amended in later years to include other bases
of discrimination, including sex and ancestry (1971); physical handicap
(1976); marital status, parental status, and HIV (1989); age (1992); and
gender identity and expression and sexual expression (2005).
36
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
basis of religion, on the use of real property held by a
religious institution or organization or by a religious or
charitable organization operated, supervised, or controlled by a
religious institution or organization, and used for religious or
charitable purposes” (exemption clause). (Emphasis added.) In
order for the exemption clause to apply to a religion-based
restriction on real property, the subject property must be: (1)
“held by a religious institution or organization or by a
religious or charitable organization operated, supervised, or
controlled by a religious institution or organization” and (2)
“used for religious or charitable purposes.” HRS § 515-6(b)
(emphases added).
Contrary to Appellants’ arguments in this case, there
is no language in HRS § 515-6(b) indicating that the legislature
contemplated the provision to apply only to real property
transactions from specific grantors in order to fall under the
statute’s purview. Likewise, there are no references to other
provisions that suggests that the legislature only intended the
general voidance or exemption clauses to apply to deed
restrictions imposed solely by religious institutions as
grantors.
Rather, the exemption clause in HRS § 515-6(b) by its
plain language specifies that the relevant inquiry, in assessing
whether the exemption clause applies, hinges on whether (1) the
37
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
party currently holding the property is a “religious institution
or organization or a religious or charitable organization
operated, supervised, or controlled by a religious institution
or organization, and” (2) the property is used for “religious or
charitable purposes.” HRS § 515-6(b). The word “held” in the
statute should be construed as the past participle of the word
“hold” which means “to have ownership or possession of[.]”
Hold, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/hold [https://perma.cc/7ADJ-CD54]. Thus,
when the exemption clause is read in full, a plain understanding
and meaning of the phrase “real property held by a religious
institution or organization” indicates that the real property
must be currently or presently “own[ed] or possess[ed]” by a
religious institution or organization, for the imposition of a
religion-based restriction on real property to be within the
exemption under the statute. This interpretation aligns with
the purpose underlying the HRS § 515-6(b) exemption clause to
benefit religious institutions.
2. The Circuit Court Erred by Granting Summary Judgment
For the State on Appellants’ Statutory Claim Under HRS
§ 515-6(b)
Appellants’ primary statutory argument is that they
are not religious institutions, the exemption clause in HRS
§ 515-6(b) is thus not applicable to them, and therefore the
Deed Restriction from 1922 must be voided by HRS § 515-6(b),
38
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
which was adopted in 1967. This argument puts the cart before
the horse. It is based on the assumption that Appellants need
not, in the first place, be concerned with complying with the
Deed Restriction. If the Deed Restriction was followed, the
Appellants apparently would be in breach because they contend
they are not religious institutions, indicating they are not
using the Property for church purposes. In turn, under the 1922
Land Patent, the Property would revert to the State.
Appellants appear to argue, nonetheless, that even if
they violated a valid Deed Restriction, they are now the owners
of the Property, they are not religious institutions, and thus
the Deed Restriction can be voided by HRS § 515-6(b). As the
State argues, this logic cannot stand. Rather, Appellants’
argument under HRS § 515-6(b) boils down to whether they can
properly hold the Property, which in turn requires that we
address whether the Deed Restriction is constitutionally valid.
If the Deed Restriction is constitutionally sound, Appellants
cannot hold the Property if the Property is not being used for
church purposes, and their argument under HRS § 515-6(b) is
moot. If, on the other hand, the Deed Restriction is
constitutionally invalid, then it cannot be enforced by the
State and Appellants’ arguments under HRS § 515-6(b) are also
moot.
39
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Hence, with respect to HRS § 515-6(b), it was not
proper for the Circuit Court to grant summary judgment for
either party based on this statutory provision. The Circuit
Court erred in granting summary judgment for the State pursuant
to HRS § 515-6(b).
D. Constitutional Analysis
The Hawai‘i Establishment Clause, set forth in article
I, section 4 of the Hawai‘i Constitution, states: “No law shall
be enacted respecting an establishment of religion[.]”16 The
Hawai‘i Establishment Clause is similar to the Federal
Establishment Clause, which states: “Congress shall make no law
respecting an establishment of religion[.]” U.S. Const. amend.
I, § 1. The Federal Establishment Clause was made applicable to
the states pursuant to the Fourteenth Amendment. Cantwell v.
Connecticut, 310 U.S. 296, 303 (1940) (“The First Amendment
declares that Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof. The Fourteenth Amendment has rendered the legislatures
of the states as incompetent as Congress to enact such laws.”);
Everson v. Board of Educ. of Ewing Twp., 330 U.S. 1, 8, 13
16 Article I, section 4 of the Hawai‘i Constitution provides in full:
“No law shall be enacted respecting an establishment of religion, or
prohibiting the free exercise thereof, or abridging the freedom of speech or
of the press or the right of the people peaceably to assemble and to petition
the government for a redress of grievances.”
40
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
(1947) (recognizing that the Fourteenth Amendment made the
Federal Establishment Clause applicable to the states).
Appellants invoke both the Hawai‘i Establishment Clause
and the Federal Establishment Clause in asserting that the Deed
Restriction is invalid. In State v. Wilson, 154 Hawai‘i 8, 13,
543 P.3d 440, 445 (2024), this court determined “that the proper
sequence to consider matching constitutional text is to
interpret the Hawai‘i Constitution before its federal
counterpart. Only if the Hawai‘i Constitution does not reach the
minimum protection provided by a parallel federal constitutional
right should this court construe the federal analogue.”
We first address the Hawai‘i Establishment Clause, and
we hold that the Hawai‘i Establishment Clause precludes the State
from enforcing the Deed Restriction.
1. The Hawai‘i Establishment Clause
This court has “long recognized that the Hawai‘i
Constitution must be construed with due regard to the intent of
the framers and the people adopting it, and the fundamental
principle in interpreting a constitutional provision is to give
effect to that intent. This intent is to be found in the
instrument itself.” Kaheawa Wind Power, LLC v. Cnty. of Maui,
146 Hawai‘i 76, 87-88, 456 P.3d 149, 160-61 (2020) (citation
omitted). “Moreover, a constitutional provision must be
41
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
construed in connection with other provisions of the instrument,
and also in the light of the circumstances under which it was
adopted and the history which preceded it.” Id. at 88, 456 P.3d
at 161.
In State v. Kahlbaun, 64 Haw. 197, 638 P.2d 309
(1981), this court explained that if the text of a
constitutional provision is ambiguous, extrinsic aids may be
examined to determine the intent of the framers and the people
adopting it. Id. at 201-02, 638 P.2d at 314.
Another established rule of construction is that a court
may look to the object sought to be accomplished and the
evils sought to be remedied by the amendment, along with
the history of the times and the state of being when the
constitutional provision was adopted. In addition, we can
also look to the understanding of the voters who adopted
the constitutional provision[.]
Id. at 202, 638 P.2d at 315 (citations omitted); see also Nelson
v. Hawaiian Homes Comm’n, 127 Hawai‘i 185, 198, 277 P.3d 279, 292
(2012); Kalaeloa Ventures, LLC v. City & Cnty. of Honolulu, 143
Hawai‘i 103, 109, 424 P.3d 458, 464 (2018); Huihui v. Shimoda, 64
Haw. 527, 531, 644 P.2d 968, 971 (1982); State v. Miyasaki, 62
Haw. 269, 281, 614 P.2d 915, 922 (1980); Hawaii Gov’t Emps.’
Ass’n v. Cnty. of Maui, 59 Haw. 65, 80-81, 576 P.2d 1029, 1039
(1978).
With these guiding principles we look to the intent of
the framers and the voters who adopted the Hawai‘i Establishment
42
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Clause, the circumstances surrounding its promulgation, and the
history of the times and the state of being when it was adopted.
In 1950, the Hawai‘i Constitution was initially framed
by a Constitutional Convention. 1949 Haw. Sess. Laws Act 334,
§ 1 at 661. As this court concisely stated in Huihui:
Delegates to the 1950 Constitutional Convention of Hawaii
drafted this state’s first constitution, which was ratified
by the electorate in 1950 and later amended by the people
and approved by Congress by Act of March 18, 1959, Pub. L.
86-3, 73 Stat. 4. The constitution became the organic law
of this state upon its admission into the Union on August
21, 1959.
64 Haw. at 530 n.3, 644 P.2d at 971 n.3.
The Hawai‘i Establishment Clause originated as a part
of Proposal Number 3, section 5 (Section 5), as introduced in
the Constitutional Convention of Hawai‘i of 1950. Comm. Prop.
No. 3 in 2 Proceedings of the Constitutional Convention of
Hawai‘i of 1950 (Proceedings of 1950), at 871 (1960). Section 5
provided that: “No law shall be passed respecting the
establishment of religion, or prohibiting the free exercise
thereof.” Id. The Committee of the Whole Report for Section 5
explained in its recommendation that:
Since this section is derived from the first clause of the
1st Amendment to the Federal Constitution, with which your
Committee is in full accord, it recommends the adoption of
this section. By doing so, this State will be availing
itself of the decisions of the Federal Courts construing
said clause of the Federal Constitution.
Comm. of the Whole Rep. No. 5 in 1 Proceedings of 1950, at 300
(emphases added). Proposal Number 3 sections 5, 7, and 19,
which individually passed their first and second readings
43
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
unanimously, were ultimately combined by the Committee on Style
to create article I, section 3, which read:
SECTION 3. Freedom of Religion, Speech, Press,
Assembly and Petition. No law shall be enacted respecting
an establishment of religion or prohibiting the free
exercise thereof, or abridging the freedom of speech or of
the press, or the right of the people peaceably to assemble
and to petition the government for a redress of grievances.
Stand. Comm. Rep. No. 88 in 1 Proceedings of 1950, at 244-45
(brackets omitted). The Committee on Style reasoned that the
purpose for combining those sections into one single section was
“(1) [t]o bring related matters together, and (2) [t]o follow
the more traditional practice of the Federal Constitution.” Id.
at 243 (formatting altered).
On June 14, 1950, article I, section 3 unanimously
passed third reading, as amended by the Committee on Style. See
1 Proceedings of 1950, at 99.
The Hawai‘i Constitution went into effect on August 21,
1959, as amended by Congress.17 Proclamation No. 3309, 35 Fed.
17 Following the 1950 Constitutional Convention, the Hawai‘i
Constitution was “adopted by a vote of the people of [Hawai‘i] in an election
held on November 7, 1950[.]” See Proclamation No. 3309, 35 Fed. Reg. 6868
(Aug. 21, 1959). On March 18, 1959, Congress approved the 1950 Hawai‘i
Constitution, contingent on proposed amendments to be submitted to the people
of Hawai‘i for a vote – none of which are relevant to this case. Admission
Act, Pub. L. No. 86-3, § 7(b), 73 Stat. 4, 7-8 (1959). Congress’ proposed
amendments were subsequently adopted by the people of Hawai‘i at an election
held on June 27, 1959.
After the Hawai‘i Constitution went into effect in 1959, there were no
substantive amendments to the Hawai‘i Establishment Clause. The provision was
renumbered from article I, section 3 to article I, section 4 following the
1978 Constitutional Convention, after a new section was added to the Hawai‘i
Constitution. See State Constitution in 1 Proceedings of the Constitutional
Convention of Hawai‘i of 1978, at 1148-49 (1980).
44
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Reg. 6868 (Aug. 21, 1959); see Admission Act, Pub. L. No. 86-3,
§ 7(b), 73 Stat. 4, 7-8 (1959).
With this historical context, the framers’ intent
regarding Hawai‘i’s Establishment Clause is best articulated by
the Committee of the Whole Report during the 1950 Constitutional
Convention. The committee first stated that the provision was
based on the Federal Establishment Clause, with which the
committee was “in full accord.” Comm. of the Whole Rep. No. 5
in 1 Proceedings of 1950, at 300. The committee recommended
adoption of the proposal because “[b]y doing so, this State will
be availing itself of the decisions of the Federal Courts
construing said clause of the Federal Constitution.” Id. In
1950, the proposed language was “No law shall be passed
respecting the establishment of religion[.]” Ultimately, the
Hawai‘i Establishment Clause, promulgated as part of Hawai‘i’s
Constitution in 1959, states: “No law shall be enacted
respecting an establishment of religion[.]” Haw. Const. art. I,
§ 4. We find nothing in the history between 1950 and 1959, or
the two-word difference between the original proposal and the
final version of the Hawai‘i Establishment Clause, to suggest a
different intent from what was stated by the Committee of the
Whole in 1950.
In light of the guidance from the framers, we next
consider federal court decisions regarding the Federal
45
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Establishment Clause, before and in the time period our state
constitution was proposed, adopted by the electorate, and became
effective. Such case law provides the best indication of what
the framers and voters intended by proposing and adopting the
Hawai‘i Establishment Clause. Moreover, this approach is
consistent with this court’s long-standing principles in
construing our state constitution to consider “the history of
the times and the state of being when [a] constitutional
provision was adopted.” Kahlbaun, 64 Haw. at 202, 638 P.2d at
315; see also Kaheawa Wind Power, LLC, 146 Hawai‘i at 87-88, 456
P.3d at 160-61.
Ultimately, however, when we consider federal law
regarding textually similar constitutional provisions, we must
decide the best course for our state under the Hawai‘i
Constitution:
As the ultimate judicial tribunal in this state, this court
has final, unreviewable authority to interpret and enforce
the Hawaii Constitution. We have not hesitated in the past
to extend the protections of the Hawaii Bill of Rights
beyond those of textually parallel provisions in the
Federal Bill of Rights when logic and a sound regard for
the purposes of those protections have so warranted.
State v. Tanaka, 67 Haw. 658, 661-62, 701 P.2d 1274, 1276 (1985)
(internal quotation marks and brackets omitted) (quoting State
v. Kaluna, 55 Haw. 361, 369, 520 P.2d 51, 58 (1974)); see also
Huihui, 64 Haw. at 531, 644 P.2d at 971.
46
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
2. The Hawai‘i Establishment Clause Precludes the State
From Enforcing the Deed Restriction
When the Hawai‘i Constitution was framed and
subsequently went into effect, three U.S. Supreme Court cases
delineated the law under Federal Establishment Clause
jurisprudence: Everson v. Board of Educ. of Ewing. Township, 330
U.S. 1 (1947); McCollum v. Board of Educ., 333 U.S. 203 (1948);
and Zorach v. Clauson, 343 U.S. 306 (1952).18 We conclude that
these decisions provide appropriate and ample guidance to decide
this case.19 We introduce each case, in turn, before analyzing
the Deed Restriction under the Hawai‘i Establishment Clause.
In 1947, three years before the 1950 Constitutional
Convention in Hawai‘i, the U.S. Supreme Court issued its landmark
Federal Establishment Clause decision in Everson, 330 U.S. 1.
Everson is considered a seminal case which “set the course of
Establishment Clause decisions for two generations.” John C.
Jeffries, Jr. & James E. Ryan, A Political History of the
Establishment Clause, 100 Mich. L. Rev. 279, 284-87 (2001); see
also Daniel O. Conkle, Toward a General Theory of the
Establishment Clause, 82 Nw. U. L. Rev. 1113, 1124-25 (1988).
18 Although the Federal Establishment Clause was adopted as part of
the Bill of Rights in the U.S. Constitution in 1791, there were only a few
cases dealing with the clause prior to the 1940s – none of which are germane
to the issues presently before this court.
19 Although we focus on these cases to resolve the issues presented
in this case, we are not limited to considering only these cases in future
challenges under the Hawai‘i Establishment Clause.
47
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
In Everson, the U.S. Supreme Court articulated
fundamental principles of the Federal Establishment Clause:
The ‘establishment of religion’ clause of the First
Amendment means at least this: Neither a state nor the
Federal Government can set up a church. Neither can pass
laws which aid one religion, aid all religions, or prefer
one religion over another. Neither can force nor influence
a person to go to or to remain away from church against his
will or force him to profess a belief or disbelief in any
religion. No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for church
attendance or non-attendance. No tax in any amount, large
or small, can be levied to support any religious activities
or institutions, whatever they may be called, or whatever
form they may adopt to teach or practice religion. Neither
a state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations
or groups and vice versa. In the words of Jefferson, the
clause against establishment of religion by law was
intended to erect ‘a wall of separation between Church and
State.’
330 U.S. at 15-16 (citation omitted). The Supreme Court held
that a state statute authorizing school districts to pay for
transportation of parochial school students, as part of a
general program to pay fares for students attending public and
other schools, did not violate the Federal Establishment Clause.
Id. at 17. The Court explained:
It is undoubtedly true that children are helped to get to
church schools. There is even a possibility that some of
the children might not be sent to the church schools if the
parents were compelled to pay their children’s bus fares
out of their own pockets when transportation to a public
school would have been paid for by the State. The same
possibility exists where the state requires a local transit
company to provide reduced fares to school children
including those attending parochial schools, or where a
municipally owned transportation system undertakes to carry
all school children free of charge. Moreover, state-paid
policemen, detailed to protect children going to and from
church schools from the very real hazards of traffic, would
serve much the same purpose and accomplish much the same
result as state provisions intended to guarantee free
transportation of a kind which the state deems to be best
48
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
for the school children’s welfare. And parents might
refuse to risk their children to the serious danger of
traffic accidents going to and from parochial schools, the
approaches to which were not protected by policemen.
Similarly, parents might be reluctant to permit their
children to attend schools which the state had cut off from
such general government services as ordinary police and
fire protection, connections for sewage disposal,
public highways and sidewalks. Of course, cutting off
church schools from these services, so separate and so
indisputably marked off from the religious function, would
make it far more difficult for the schools to operate. But
such is obviously not the purpose of the First Amendment.
That Amendment requires the state to be a neutral in its
relations with groups of religious believers and non-
believers; it does not require the state to be their
adversary. State power is no more to be used so as to
handicap religions, than it is to favor them.
Id. at 17-18 (emphasis added) (footnote omitted).
A year later, in McCollum, 333 U.S. 203, the U.S.
Supreme Court struck down a public school program in Champaign,
Illinois, that allowed religious instructors to enter public
school classrooms during regular school hours to provide thirty-
minutes of religious teaching to students whose parents
consented to their participation in the program. Id. at 205-06.
There was no state statute that expressly authorized this
program. See id. at 206. Rather, the subject program was
permitted by the Champaign Board of Education, which under
Illinois statutes had general supervisory powers over the use of
public school buildings in the Champaign school district. Id.
at 205. Under the program, students choosing to attend
religious instruction were released from secular study, while
students choosing not to attend were required to go to another
class for secular studies. Id. at 209.
49
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
In concluding that the school program ran afoul of the
Federal Establishment Clause, the U.S. Supreme Court explained:
The foregoing facts . . . show the use of tax-supported
property for religious instruction and the close
cooperation between the school authorities and the
religious council in promoting religious education. The
operation of the state’s compulsory education system thus
assists and is integrated with the program of religious
instruction carried on by separate religious sects. Pupils
compelled by law to go to school for secular education are
released in part from their legal duty upon the condition
that they attend the religious classes. This is beyond all
question a utilization of the tax-established and tax-
supported public school system to aid religious groups to
spread their faith. And it falls squarely under the ban of
the First Amendment (made applicable to the States by the
Fourteenth) as we interpreted it in [Everson][.]
. . . .
[T]he First Amendment rests upon the premise that both
religion and government can best work to achieve their
lofty aims if each is left free from the other within its
respective sphere. Or, as we said in the [Everson] case,
the First Amendment had erected a wall between Church and
State which must be kept high and impregnable.
Here not only are the state’s [tax-supported] public school
buildings used for the dissemination of religious
doctrines. The State also affords sectarian groups an
invaluable aid in that it helps to provide pupils for their
religious classes through use of the state’s compulsory
public school machinery. This is not separation of Church
and State.
Id. at 209-10, 212.
Of note in McCollum, the Champaign Board of Education
sought to dismiss the appeal by asserting that the Illinois
Supreme Court’s decision, from which the appeal was taken, did
not raise a question about the validity of a state statute for
jurisdictional purposes. Id. at 206. However, the U.S. Supreme
Court held:
This contention rests on the admitted fact that the
challenged program of religious instruction was not
50
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
expressly authorized by statute. But the State Supreme
Court has sustained the validity of the program on the
ground that the Illinois statutes granted the board
authority to establish such a program. This holding is
sufficient to show that the validity of an Illinois statute
was drawn in question within the meaning of 28 U.S.C. s
344(a), 28 U.S.C.A. s 344(a).
Id. (emphases added).
In 1952, the U.S. Supreme Court decided Zorach, 343
U.S. 306. There, the Court upheld a New York City program which
allowed public schools, upon written request from parents, to
release students during the school day from school grounds to
attend religious instruction or devotional exercises elsewhere.
Id. at 308. The Court ruled that the program did not violate
the Federal Establishment Clause, reasoning that, unlike
McCollum, the program did not involve religious instruction in
public school classrooms, the expenditure of public funds, nor
coercion by school authorities. Id. at 308-09, 311. The Court
further explained:
Government may not finance religious groups nor undertake
religious instruction nor blend secular and sectarian
education nor use secular institutions to force one or some
religion on any person. But we find no constitutional
requirement which makes it necessary for government to be
hostile to religion and to throw its weight against efforts
to widen the effective scope of religious influence. The
government must be neutral when it comes to competition
between sects. It may not thrust any sect on any person.
It may not make a religious observance compulsory. It may
not coerce anyone to attend church, to observe a religious
holiday, or to take religious instruction. But it can
close its doors or suspend its operations as to those who
want to repair to their religious sanctuary for worship or
instruction. No more than that is undertaken here.
. . . .
In the McCollum case the classrooms were used for religious
instruction and the force of the public school was used to
51
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
promote that instruction. Here, as we have said, the
public schools do no more than accommodate their schedules
to a program of outside religious instruction. We follow
the McCollum case. But we cannot expand it to cover the
present released time program unless separation of Church
and State means that public institutions can make no
adjustments of their schedules to accommodate the religious
needs of the people. We cannot read into the Bill of
Rights such a philosophy of hostility to religion.
Id. at 314-15 (emphases added) (footnote omitted).
With the above guiding principles in mind, we assess
the constitutionality of enforcing the Deed Restriction under
the Hawai‘i Establishment Clause. We first consider the state
action in this case covered by the Hawai‘i Establishment Clause,
adopted in 1959, thirty-seven years after the subject Land
Patent was issued. The State, through the Department of Land
and Natural Resources (DLNR), asserts its rights under the Deed
Restriction. The State has admitted to paragraphs 5 and 9 in
the Second Amended Complaint, which state:
5. The State has refused to remove the Church
purposes restriction and reversionary interest from the
properties and continues to claim that the clause is
enforceable and the properties should revert to the State
if the restriction is not satisfied.
. . . .
9. State is the State of Hawaii as successor to
the Territory of Hawaii and purports to hold a reversionary
interest in at least a portion of the Property.
HRS § 171-3 (2011) establishes DLNR’s broad authority, and
states in relevant part: “The department shall manage,
administer, and exercise control over public lands, . . . and
all other interests therein and exercise such powers of
52
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
disposition thereof as may be authorized by law.” Given its
admissions, the State through DLNR seeks to enforce the church-
purposes Deed Restriction, and its power to seek such
enforcement flows from its broad statutory authority.
These circumstances are similar to McCollum in that
there is no statute expressly authorizing the challenged action
in this case, but the action was undertaken under broad
statutory authority. In McCollum, Illinois statutes gave
district boards of education general supervisory powers over
public school buildings, and the Champaign Board of Education
used this power to allow religious groups to conduct religious
teaching in public school buildings. 333 U.S. at 205. In
addressing its jurisdiction in the case, the U.S. Supreme Court
stated that the Illinois Supreme Court had “sustained the
validity of the program on the ground that the Illinois statutes
granted the board authority to establish such a program. This
holding is sufficient to show that the validity of an Illinois
statute was drawn in question within the meaning of 28 U.S.C. s
344(a), 28 U.S.C.A. s 344(a).” Id. at 206. Although addressed
in the context of its jurisdiction, the Court in McCollum
recognized that state action under broad statutory powers will
trigger Establishment Clause scrutiny, as it held that the
school program in that case violated the Federal Establishment
Clause. Id. at 209-12. Similarly, we conclude that the State’s
53
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
actions seeking to enforce the church-purposes Deed Restriction
in this case implicates scrutiny under the Hawai‘i Establishment
Clause.
Turning to the question of whether the State’s action
to enforce the Deed Restriction violates the Hawai‘i
Establishment Clause, we conclude that it does. Everson is most
instructive, delineating important standards under which to
assess whether Establishment Clause principles are violated,
including that:
Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, aid
all religions, or prefer one religion over another. . . .
Neither a state nor the Federal Government can, openly or
secretly, participate in the affairs of any religious
organizations or groups and vice versa. In the words of
Jefferson, the clause against establishment of religion by
law was intended to erect ‘a wall of separation between
Church and State.’
330 U.S. at 15-16 (citation omitted).
Everson further declared that Establishment Clause
principles “require[] the state to be a neutral in its relations
with groups of religious believers and non-believers; it does
not require the state to be their adversary. State power is no
more to be used so as to handicap religions, than it is to favor
them.” Id. at 18 (emphasis added.)
Here, the State’s action of enforcing the Deed
Restriction runs afoul of the tenets expressed in Everson. The
Deed Restriction requires that the Property be used “for Church
54
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
purposes only” or else the Property reverts to the State. By
seeking to enforce this provision the State brings to bear its
powers to ensure that the Property continues being used for
“Church purposes.” This constitutes direct state aid in support
of religion.
Like the coercion and entanglement concerns expressed
in the context of public education in Everson and McCollum, the
Deed Restriction in this case also requires the State to assess
and determine whether Appellants are using the Property “for
Church purposes only.” See Everson, 220 U.S. at 16 (“Neither a
state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations or
groups and vice versa.”); McCollum, 333 U.S. at 216-17
(discussing the history and import of the separation of public
education from “Church entanglements” to, among other things,
protect “religion from censorship and coercion however subtly
exercised”). The “church-purposes” Deed Restriction and the
State’s enforcement of it, places the State in the role of
actively policing what constitutes a “Church purpose.” Such a
role is fraught with innumerable ways that the State would be
thrust into the business of religion and religious institutions.
“Church” is commonly defined as “a building for public and
especially Christian worship.” Church, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/church
55
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
[https://perma.cc/5LS4-VAL3]. Clearly, the State cannot enforce
the Deed Restriction only in favor of Christian worship. See
Everson, 330 U.S. at 511 (“Neither a state nor the Federal
Government can . . . pass laws which aid one religion, aid all
religions, or prefer one religion over another.”). Even with a
broader notion of “church” and given the breadth of worship,
faith, and beliefs among different people, the State’s
enforcement of the Deed Restriction requires it to assess and
make judgment calls as to what a “church purpose” entails.
Rather than a wall of separation between church and state, this
is the opposite and causes an entanglement between church and
state. We conclude that the State’s involvement in determining
what constitutes “Church purposes” under the Deed Restriction in
this case violates the Hawai‘i Establishment Clause.
Moreover, enforcement of the Deed Restriction is not a
neutral act as between religion and non-religion. Rather, the
Deed Restriction explicitly favors religion, requiring any
owners of the Property to continue using it only for “Church
purposes” or they will lose the Property. Hence, the State’s
authority is directly utilized to support religion. See Zorach,
343 U.S. at 315 (noting that in McCollum, public school
“classrooms were used for religious instruction and the force of
the public school was used to promote that instruction”
(emphasis added)).
56
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Based on the foregoing, we hold that the Hawai‘i
Establishment Clause precludes the State from enforcing the Deed
Restriction.
3. We Decline to Adopt the Tests Asserted by the Parties
Appellants assert that the test articulated by the
U.S. Supreme Court in Lemon, 403 U.S. 602, is the appropriate
test for deciding constitutional infirmity under the Hawai‘i
Establishment Clause. The State, on the other hand, argues that
the Lemon test has been abandoned by the U.S. Supreme Court and
asserts that we should adopt the now-prevailing test for Federal
Establishment Clause challenges in Kennedy, 597 U.S. 507. We
decline to adopt either the Lemon or the Kennedy tests.
In Lemon, the U.S. Supreme Court stated:
In the absence of precisely stated constitutional
prohibitions, we must draw lines with reference to the
three main evils against which the Establishment Clause was
intended to afford protection: ‘sponsorship, financial
support, and active involvement of the sovereign in
religious activity.’ [Walz v. Tax Comm’n, 397 U.S. 664,
668 (1970)].
Every analysis in this area must begin with consideration
of the cumulative criteria developed by the Court over many
years. Three such tests may be gleaned from our cases.
First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that
neither advances nor inhibits religion, [Board of Educ. v.
Allen, 392 U.S. 236, 243 (1968)]; finally, the statute must
not foster ‘an excessive government entanglement with
religion.’ [Walz, 397 U.S. at 674].
57
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
403 U.S. at 612-13 (emphases added).20 Appellants assert that
the Lemon test should apply for purposes of the Hawai‘i
Establishment Clause because it was discussed in the Hawai‘i
Constitutional Convention Studies of 1978.
The LRB drafted the 1978 Studies as a guidance
document to the delegates of the 1978 Constitutional Convention.
The 1978 Studies “were undertaken at the direction of the
legislature and are an attempt to present in understandable form
many of the possible issues and the arguments on both sides of
such issues that the delegates to the Constitutional Convention
of 1978 may wish to consider.” Hawai‘i Constitutional Convention
Studies 1978: Introduction and Article Summaries, at 1 (1978).
Appellants contend that the 1978 Studies, as well as
Standing Committee Report No. 39 of the 1978 Constitutional
Convention (related to a different section of the Hawai‘i
Constitution),21 demonstrate that “the delegates to the 1978
20 Although we do not adopt the test articulated in Lemon, we
recognize some of its principles stem from and are consistent with Everson,
McCollum and Zorach.
21 Standing Committee Report No. 39, inter alia, discussed article
X, section I of the Hawai‘i Constitution (then article XI, section I), a
constitutional provision that, according to the report, “prohibits the use of
public funds for the support or benefit of any sectarian or private
educational institution.” See Stand. Comm. Rep. No. 39 in 1 Proceedings of
the Constitutional Convention of Hawai‘i of 1978, at 587-88 (1980). The
Standing Committee Report included the following excerpted sentence: “The
application of the federal constitution’s prohibition against entanglement of
the church and state to the issue was also discussed.” Id. at 588. While
the Standing Committee Report did not directly mention Lemon, Appellants
maintain that the report, and the excerpted sentence in particular,
“illustrate[] that fears of entanglement, in violation of [Lemon], materially
58
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Constitutional Convention understood [Lemon] to be the
controlling test for [Hawai‘i’s] [E]stablishment [C]lause.”
Appellants argue that “by declining to substantively amend the
[Hawai‘i Establishment Clause], the delegates approved [Lemon] as
the applicable test in 1978.”
None of Appellants’ arguments for adopting the Lemon
test are convincing. There is no indication that the 1978
convention delegates approved the Lemon test or impliedly
endorsed it. The 1978 Studies are guidance documents and are
not reflective of the discussions or ideas of the 1978
convention delegates themselves. The 1978 Studies preceded the
1978 Constitutional Convention, and the LRB which created the
1978 Studies is a legislative service agency. Further, the
substance of the Hawai‘i Establishment Clause was not amended in
1978, nor is there any indication that the convention delegates
contemplated Lemon in any debates or proceedings during the 1978
convention. Simply because the 1978 Studies were available does
not mean they were relied upon by the delegates. There being no
substantive action by the 1978 convention delegates regarding
the Hawai‘i Establishment Clause, and there being no indication
that the delegates actually considered or debated the 1978
Studies, we conclude that the delegates did not approve or
influenced the delegates’ determination of allowable interaction with
religion.”
59
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
endorse the contents of that study such that we should adopt the
Lemon test.
Next, we address the State’s argument that we should
adopt the “historical practices and understandings” test adopted
by the U.S. Supreme Court in Kennedy in 2022. In Kennedy, the
U.S. Supreme Court held that a high school football coach had
been improperly suspended for kneeling midfield after games to
offer a “quiet prayer” during a period when school employees
were free to attend to personal matters.22 597 U.S. at 512-14.
Regarding the proper analysis under the Federal Establishment
Clause, Kennedy states that the U.S. Supreme Court “long ago
abandoned Lemon and its endorsement test offshoot.” 597 U.S. at
534. Instead, Kennedy instructs that “the Establishment Clause
must be interpreted by reference to historical practices and
understandings.” 597 U.S. at 535 (emphasis added) (internal
quotation marks omitted) (citing Town of Greece v. Galloway, 572
U.S. 565, 576 (2014)). The Kennedy decision provides little
direct guidance, but drew on past U.S. Supreme Court
22 The dissent in Kennedy strongly disagreed with the majority’s
assessment of the record, stating that the coach’s practice evolved over time
to where a majority of the football team joined him and the coach would
deliver speeches with overtly religious references. 597 U.S. at 546, 549
(Sotomayor, J., dissenting).
60
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Establishment Clause cases where the Court utilized a history-
focused approach,23 in order to emphasize that:
The line that courts and governments must draw between the
permissible and the impermissible has to accord with
history and faithfully reflect the understanding of the
Founding Fathers. An analysis focused on original meaning
and history, this Court has stressed, has long represented
the rule rather than some 'exception' within the Court’s
Establishment Clause jurisprudence.
Id. at 535-36 (emphasis added) (citations, brackets, and
quotation marks omitted).
Here, the State argues that this court likewise should
reject Lemon and adopt Kennedy for purposes of interpreting the
Hawai‘i Establishment Clause. Citing Koolau Baptist Church, 68
Haw. 410, 718 P.2d 267, the State asserts that this court has
interpreted the Hawai‘i Establishment Clause “co-extensively with
the First Amendment of the United States Constitution.” The
State mistakenly relies on Koolau Baptist Church because that
case only addressed the Federal Establishment Clause, not the
Hawai‘i Establishment Clause. See id. at 412, 419-21, 718 P.2d
at 268, 273-75.
23 In articulating its new historical practices and understandings
test, the Kennedy majority cited to a group of pre-Lemon cases where the
Court dealt with Establishment Clause challenges in historical terms, and
appeared to suggest that the approach in those cases should inform
Establishment Clause analyses going forward under Kennedy. See Kennedy, 597
U.S. 507, 535-36 (citing Town of Greece, 572 U.S. at 575-77 (analyzing the
federal historical practice of legislative prayer)); American Legion v.
American Humanist Ass’n, 588 U.S. 29, 58-60 (2019) (analyzing the history of
religious monuments); Torcaso v. Watkins, 367 U.S. 488, 490-91 (1961)
(analyzing the history of religious oaths); McGowan v. Maryland, 366 U.S.
420, 431-40 (1961) (analyzing the history of Sunday closing laws); Walz, 397
U.S. at 668-80 (analyzing the “history and uninterrupted practice” of tax
exemptions for churches).
61
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
We also note Justice Sotomayor’s dissent in Kennedy
criticizing the majority’s opinion for its lack of pointed
guidance, and its emphasis on the application of “history and
tradition” to resolve challenges under the Federal Establishment
Clause:
[T]he Court rejects longstanding concerns surrounding
government endorsement of religion and replaces the
standard for reviewing such questions with a new “history
and tradition” test. . . . This decision does a disservice
. . . to our Nation’s longstanding commitment to the
separation of church and state. . . .
. . . .
The Court reserves any meaningful explanation of its
history-and-tradition test for another day, content for now
to disguise it as established law and move on. It should
not escape notice, however, that the effects of the
majority’s new rule could be profound. The problems with
elevating history and tradition over purpose and precedent
are well documented. [See Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215, 374-75 (2022) (Breyer, Sotomayor, and
Kagan, JJ., dissenting)] (explaining that “the Framers
defined rights in general terms, to permit future evolution
in their scope and meaning”); [New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 103-112 (2022)
(Breyer, J., dissenting)] (explaining the pitfalls of a
“near-exclusive reliance on history” and offering examples
of when this Court has “misread” history in the past);
[Brown v. Davenport, 596 U.S. 118, 152-53 (2022) (Kagan,
J., dissenting)] (noting the inaccuracies risked when
courts “play amateur historian”).
Kennedy, 597 U.S. at 546-47, 573 (Sotomayor, J., dissenting).
In this same vein, other U.S. Supreme Court justices
have admonished tests that require judges to play the role of
“amateur historian” in attempting to resolve legal disputes.
See, e.g., Brown, 596 U.S. at 149, 152 (Kagan, J., dissenting)
(noting “the peril of looking at history through a 21st-century
62
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
lens” and the inaccuracies risked when courts “play amateur
historian”).24
Further, this court has not shied away from critiquing
and illuminating the risks inherent in requiring judges to adopt
independent historical research roles. See Wilson, 154 Hawai‘i
at 21-22, 543 P.3d at 453-54 (critiquing the U.S. Supreme Court
for misusing history to flip its long-held understandings and
interpretations of critical issues including gun control and
women’s reproductive rights).
We see no reason to adopt the Kennedy test to analyze
the Hawai‘i Establishment Clause. We recognize the well-founded
concerns raised by Justice Sotomayor’s dissent in Kennedy,
highlighting the challenges of unearthing and applying
historical practices and understandings from the period around
the U.S. Constitution’s adoption in 1787. Further, Appellants
make the salient point that applying the Kennedy test in the
context of state actions in Hawai‘i is even more fraught with
questions and peril. It would be discordant to require that the
Hawai‘i Establishment Clause be construed based on the historical
24 Appellants’ opening brief also points to a law review article
supporting their contention that the Kennedy historical practices and
understandings test “fatally presumes that all historical governmental acts
are consistent with constitutional requirements” despite history indicating
that “government often engages in unconstitutional activities.” See Alex J.
Luchenitser & Sarah R. Goetz, A Hollow History Test: Why Establishment Clause
Cases Should Not Be Decided Through Comparisons with Historical Practices, 68
Cath. U. L. Rev. 653, 666-70 (2019) (noting various historical state and
federal government acts that were subsequently deemed unconstitutional).
63
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
practices and understandings of the Founding Fathers given that
the Hawai‘i Constitution was adopted by its electorate in 1959,
one-hundred and seventy-two years after the U.S. Constitution
was adopted.
Further, in the context of this case, the practice in
question is the grant of property with a church-purposes deed
restriction in 1922, when Hawai‘i was a territory and decades
before the Hawai‘i Constitution was framed or adopted. The
State’s position in this case, in part, is that the Deed
Restriction here passes muster because under a Kennedy analysis,
it is part of our State’s historical practices as an early form
of land use regulation. We reject that notion because the
record in this case, discussed above, does not support the
State’s contention that church-purposes deed restrictions were
part of an early form of use-zoning in the Territory of Hawai‘i.
Further, there is nothing in the record to indicate that the
framers of the Hawai‘i Constitution or the electorate considered
such state actions as consistent with the Hawai‘i Establishment
Clause adopted in 1959.
E. Federal Establishment Clause
In light of our holding under the Hawai‘i Establishment
Clause that the State is precluded from enforcing the Deed
Restriction, the questions under the Federal Establishment
64
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Clause need not be addressed. See Wilson, 154 Hawai‘i at 13, 543
P.3d at 445.
The Circuit Court held that the Deed Restriction did
not violate the Federal Establishment Clause. Because we rule
based on state constitutional grounds and the Federal
Establishment Clause need not be reached in this case, we vacate
that ruling. See Michigan v. Long, 463 U.S. 1032, 1040-42
(1983).
V. CONCLUSION
Based on the Hawai‘i Establishment Clause, we reverse
the Circuit Court’s summary judgment ruling for the State, and
hold that summary judgment is warranted for Appellants Hilo Bay
and Keaukaha Ministry. The State is precluded from enforcing
the Deed Restriction by the Hawai‘i Establishment Clause. The
Circuit Court’s ruling under the Federal Establishment Clause is
vacated.
Kenneth R. Kupchak /s/ Mark E. Recktenwald
Clint K. Hamada
for plaintiffs-appellants /s/ Sabrina S. McKenna
Julie H. China /s/ Todd W. Eddins
Miranda C. Steed
Deputy Attorneys General /s/ Lisa M. Ginoza
for defendants-appellees
/s/ Vladimir P. Devens
65
Opinion
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
12-SEP-2025
08:56 AM
Dkt. 19 OP
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
HILO BAY MARINA, LLC and KEAUKAHA MINISTRY LLC,
Plaintiffs-Appellants,
vs.
STATE OF HAWAI‘I; BOARD OF LAND AND NATURAL RESOURCES,
STATE OF HAWAI‘I,
Defendants-Appellees.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CAAP-XX-XXXXXXX; CASE NO. 3CCV-XX-XXXXXXX)
SEPTEMBER 12, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.;
WITH EDDINS, J., CONCURRING SEPARATELY,
WITH WHOM McKENNA AND DEVENS, JJ., JOIN;
AND DEVENS, J., ALSO CONCURRING AND DISSENTING
OPINION OF THE COURT BY GINOZA, J.
I. INTRODUCTION
This appeal arises from a 1922 Land Patent issued by
the Territory of Hawai‘i (Territory) to the trustee of a
religious organization for certain lands located on Hawai‘i
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Island (the Property).1 The Land Patent contains a deed
restriction that the Property must be used “for Church purposes
only” and that, if the Property is used for other purposes, the
land grant is voided and the Property reverts to the Territory
(Deed Restriction).
Following the initial 1922 conveyance, the Property
was transferred to different owners via private land
transactions that occurred in 1988, 2000, and 2015, each
referencing the original Land Patent. There is no dispute that
the Deed Restriction and reversionary interest carried over with
each transaction.
Plaintiffs-Appellants Hilo Bay Marina, LLC (Hilo Bay)
and Keaukaha Ministry, LLC (Keaukaha Ministry) (collectively,
Appellants) are the current owners of the Property.2 Appellants
filed this action against Defendants-Appellees State of Hawai‘i
and the State of Hawai‘i Board of Land and Natural Resources
(collectively, the State) in the Circuit Court of the Third
Circuit3 (Circuit Court), asserting that the State refuses to
remove the Deed Restriction and continues to assert that it is
1 The Property encompasses present day Tax Map Key (TMK) Numbers
(3)2-1-014:25, 29, 30, 31, 60 and 74.
2 Hilo Bay owns TMK Nos. (3)2-1-014:29, 30, 31, 60, and 74 and
Keaukaha Ministry owns TMK No. (3)2-1-014:25.
3 The Honorable Henry T. Nakamoto presided.
2
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
enforceable. Appellants contend that the Deed Restriction is
void under Hawai‘i Revised Statutes (HRS) § 515-6(b) (2018);4
violates the Hawai‘i Establishment Clause in article I, section 4
of the Hawai‘i Constitution;5 and violates the Federal
Establishment Clause in the First Amendment to the United States
Constitution.6
The parties filed cross-motions for summary judgment
(MSJ) in the Circuit Court. The Circuit Court entered summary
4 HRS § 515-6(b) (2018) provides that:
(b) Every condition, restriction, or prohibition,
including a right of entry or possibility of reverter, that
directly or indirectly limits the use or occupancy of real
property on the basis of race, sex, including gender
identity or expression, sexual orientation, color,
religion, marital status, familial status, ancestry,
disability, age, or human immunodeficiency virus infection
is void, except a limitation, on the basis of religion, on
the use of real property held by a religious institution or
organization or by a religious or charitable organization
operated, supervised, or controlled by a religious
institution or organization, and used for religious or
charitable purposes.
(Emphasis added.) The emphasized portion of the statute is referred to
as the “exemption clause.”
5 Article I, section 4 of the Hawai‘i Constitution provides in
relevant part that: “No law shall be enacted respecting an establishment of
religion, or prohibiting the free exercise thereof[.]”
Appellants’ Second Amended Complaint also alleged that the Deed
Restriction violated article VII, section 4 of the Hawai‘i Constitution, which
states in relevant part that: “No grant shall be made in violation of Section
4 of Article I of this constitution.” Article VII, section 4 is titled
“Appropriations For Private Purposes Prohibited.” However, on appeal,
Appellants do not raise any issue under article VII, section 4 of the Hawai‘i
Constitution.
6 The Federal Establishment Clause provides that: “Congress shall
make no law respecting an establishment of religion[.]” U.S. Const. amend.
I, § 1.
3
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
judgment for the State, concluding that the Territory’s sale of
government lands with deed restrictions was an early form of
use-zoning; and that the Deed Restriction in this case did not
violate any of the laws asserted by Appellants.
Appellants appealed to the Intermediate Court of
Appeals (ICA). We granted transfer to this court.
We conclude that the State’s enforcement of the Deed
Restriction violates the Hawai‘i Establishment Clause in article
I, section 4 of the Hawai‘i Constitution. We therefore reverse
the Circuit Court’s Final Judgment on those grounds.
II. BACKGROUND
A. Factual Background
In 1922, Governor Wallace Farrington sold the 3.99-
acre Property via Land Patent No. 8039 to Heber J. Grant,
Trustee for the Church of Jesus Christ of Latter-Day Saints (LDS
Church). The Land Patent stated in part:
By this Patent the Governor of the Territory of Hawaii, in
conformity with the laws of the United States of America
and of the Territory of Hawaii, and in conformity with the
provisions of Section 73 of the Hawaiian Organic Act, and
in pursuance of the provisions of Section 357 of the
Revised Laws of the Territory of Hawaii of 1915, makes
known to all men that he has this day granted and confirmed
unto HEBER J. GRANT, TRUSTEE In Trust for the Church of
Jesus Christ of Latter-Day Saints for the consideration of
TWENTY Dollars, $20.00, paid into the Treasury, all of the
land situate at KEAUKAHA, WAIAKEA in the District of SOUTH
HILO Island of HAWAII bounded and described as follows[.]
(Formatting altered.) The Land Patent further contained the
Deed Restriction, which stated:
4
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Subject to the following:
The land covered by this Grant is to be used for
Church purposes only. In the event of its being used for
other than Church purposes, this Grant shall become void
and the land mentioned herein shall immediately revert to
and revest in the Territory of Hawaii[.]
(Emphases added.) The Land Patent was signed by Governor
Farrington and the Commissioner of Public Lands.
On December 16, 1988, the LDS Church conveyed the
Property to Deseret Title Holding Corporation by Warranty Deed.
On September 6, 2000, Property Reserve, Inc., formerly
known as Deseret Title Holding Corporation, conveyed the
Property to Hilo Bay by Quitclaim Deed.7
On May 5, 2015, Hilo Bay conveyed a portion of the
Property, TMK No. (3)2-1-014:25, to Keaukaha Ministry by
Warranty Deed.8
Appellants claim, without dispute from the State, that
they are the fee-simple owners of the Property. They assert
that after years of attempted negotiations with the State, they
filed this lawsuit seeking a ruling that the Deed Restriction is
invalid and/or unenforceable.
7 The 2000 Quitclaim Deed to Hilo Bay was recorded with the State
of Hawai‘i Bureau of Conveyances on September 6, 2000.
8 The 2015 Warranty Deed to Keaukaha Ministry was recorded with the
State of Hawai‘i Bureau of Conveyances on May 5, 2015.
5
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
The State defends the validity of the Deed
Restriction, asserting its right to enforce it under the Land
Patent.
B. Circuit Court Proceedings
1. Appellants’ Complaint(s)
On April 5, 2022, Appellants filed their Complaint for
Declaratory Relief against the State in the Circuit Court.
Appellants subsequently filed two amended complaints.
Appellants’ Second Amended Complaint sought judgment
declaring that the Deed Restriction is unenforceable because it
violates: HRS § 515-6(b); the Hawai‘i Establishment Clause in
article I, section 4 of the Hawai‘i Constitution; article VII,
section 4 of the Hawai‘i Constitution; and the Federal
Establishment Clause in the First Amendment to the United States
Constitution.
Appellants’ Second Amended Complaint at paragraphs 5
and 9 asserts:
5. The State has refused to remove the Church
purposes restriction and reversionary interest from the
properties and continues to claim that the clause is
enforceable and the properties should revert to the State
if the restriction is not satisfied.
. . . .
9. State is the State of Hawaii as successor to the
Territory of Hawaii and purports to hold a reversionary
interest in at least a portion of the Property.
6
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
The State admitted paragraphs 5 and 9 in answering the Second
Amended Complaint.
2. The Parties’ Cross-MSJs
In November 2022, the parties filed cross-MSJs.
a. Appellants’ MSJ
In their MSJ, Appellants argued they were entitled to
summary judgment because there were no genuine issues of
material fact, and the only issues before the court were legal
issues. Appellants asserted four arguments in support of their
MSJ.
First, Appellants asserted that the general voidance
clause in HRS § 515-6(b) voids the Deed Restriction because the
restriction improperly limits the use of real property on the
basis of religion, in violation of the statute. Appellants also
asserted that the exemption clause in HRS § 515-6(b) is
inapplicable because it is a “narrow exception” that allows
religious institutions to restrict the use of their own
property. Appellants argued that because the State imposed the
Deed Restriction - rather than a religious institution - the
Deed Restriction was void at its inception (even though HRS
§ 515-6(b) did not exist at that time).
Second, Appellants asserted that the Deed Restriction
violated the Hawai‘i Establishment Clause, as well as article
VII, section 4 of the Hawai‘i Constitution. Appellants argued
7
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
that the applicable test for violations of the Hawai‘i
Establishment Clause is the three-part test articulated by the
U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971).
Appellants maintained that under Lemon, the Deed Restriction
violated the Hawai‘i Establishment Clause because it (1) lacks a
secular purpose, (2) improperly advances religion, and (3)
excessively entangles the State with religion.
In support of their contention that Lemon applies to
challenges under the Hawai‘i Establishment Clause, Appellants
argued that Lemon has been both applied by this court in Koolau
Baptist Church v. Department of Labor & Industrial. Relations,
68 Haw. 410, 718 P.2d 267 (1986),9 and considered by the Hawai‘i
Legislature during the Constitutional Convention of 1978.
Regarding their latter assertion, Appellants attached excerpts
of the 1978 Constitutional Convention Studies (1978 Studies)
that were drafted by the Legislative Reference Bureau (LRB).
Appellants asserted that the 1978 Studies’ reference to Lemon as
the applicable test under the Federal Establishment Clause
indicates that the Hawai‘i Legislature intended Lemon to be the
applicable test for the Hawai‘i Establishment Clause.
9 Contrary to Appellants’ suggestion, this court’s decision in
Koolau Baptist did not address article I, section 4 of the Hawai‘i
Constitution. Rather, that case dealt with the Federal Establishment Clause.
Koolau Baptist, 68 Haw. at 412, 419, 718 P.2d at 268, 273.
8
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Third, Appellants argued that the Deed Restriction
violated the Federal Establishment Clause, pursuant to the U.S.
Supreme Court’s decision in Kennedy v. Bremerton School
District, 597 U.S. 507 (2022). Appellants asserted that under
Kennedy, the Deed Restriction is unenforceable because it is
unconstitutionally coercive and forces Appellants to participate
in religion or forfeit their ownership rights.
Finally, Appellants argued that the Circuit Court
could not enforce the Deed Restriction because doing so would
constitute state action in violation of the Fourteenth Amendment
to the U.S. Constitution, pursuant to Shelley v. Kraemer, 334
U.S. 1 (1948).
b. The State’s MSJ
In its cross-MSJ, the State asserted that it is
entitled to summary judgment because the Deed Restriction
constitutes a primitive form of use-zoning and a valid exercise
of the State’s police powers. The State asserted three
arguments in support of its MSJ.
First, the State argued that HRS § 515-6(b) did not
void the Deed Restriction. The State claimed that the exemption
clause in HRS § 515-6(b) applied, and that it does not specify
the grantor for purposes of the exemption. Thus, according to
the State, the statute does not prohibit anyone - including the
State and its predecessor Territory - from being the grantor of
9
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
such a restriction, as long as the grantee is the one enumerated
in the exemption.
Second, the State argued that the Deed Restriction
does not violate the Federal Establishment Clause because it
constitutes an exercise of the State’s police power, and
comports with historical use-zoning practices and understandings
of use-zoning practices in 1922, pursuant to Kennedy. In
support of this argument, the State attached multiple exhibits,
including seventeen land patents with similar deed restrictions,
and ten maps dated between 1901-1923, allegedly showing how land
was subdivided and zoned during the territorial days. Sixteen
of the land patent exhibits, including the subject Land Patent,
were issued to churches or their respective trustees, between
the years 1921 and 1925. The State maintained that the
Territorial Government’s early form of use-zoning through sales
of land with deed restrictions is similar to current special-use
permitting, which has passed constitutional muster.
Third, the State argued that the Hawai‘i Establishment
Clause and the Federal Establishment Clause are “coextensive,”
such that the applicable test for analyzing whether the Deed
Restriction passes muster under article I, section 4 of the
Hawai‘i Constitution, is the “historical practices and
understandings test” articulated by the U.S. Supreme Court in
Kennedy. The State further asserted that even if the Lemon test
10
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
applied to the Hawai‘i Establishment Clause - as suggested by
Appellants - the Deed Restriction would still pass
constitutional muster because it was created for the secular
purpose of zoning.
The parties filed cross-memoranda in opposition to
each other’s MSJs, asserting various arguments and
counterarguments, none of which are dispositive to our holding
in this case.
3. The Circuit Court’s Ruling
On March 21, 2023, the Circuit Court entered its
Summary Judgment Order granting summary judgment in favor of the
State, and against Appellants. In this order, the Circuit Court
made findings of fact (FOF) and conclusions of law (COL).
The Circuit Court “found,” at FOF 3, that “[t]he
Territory of Hawai‘i engaged in an early form of use-zoning
through the sale of land with deed restrictions, including the
sale of government lands to religious organizations.”
The Circuit Court also made the following COLs:
HRS § 515-6(b)
10. HRS § 515-6(b) states:
Every condition, restriction, or prohibition,
including a right of entry or possibility of
reverter, that directly or indirectly limits the
use or occupancy of real property on the basis of
race, sex, including gender identity or
expression, sexual orientation, color, religion,
marital status, familial status, ancestry,
disability, age, or human immunodeficiency virus
11
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
infection is void, except a limitation, on the
basis of religion, on the use of real property
held by a religious institution or organization or
by a religious or charitable organization
operated, supervised, or controlled by a religious
institution or organization, and used for
religious or charitable purposes.
Id.
11. HRS § 515-6(b) provides an exemption that permits any
party to reserve a covenant for religious use when
transacting with a religious organization.
12. The [D]eed [R]estriction “for Church purposes only”
is included in the exemption clause of HRS § 515-6(b).
13. HRS § 515-6(b) does not void the [D]eed
[R]estriction.
First Amendment of the United States Constitution
14. The Establishment Clause of the First Amendment of
the United States Constitution does not “‘compel the
government to purge from the public sphere’ anything an
objective observer could reasonably infer endorses or
‘partakes of the religious.’” Kennedy v. Bremerton Sch.
Dist., 142 S. Ct. 2407, 2427 (2022) (internal citations
omitted).
15. The Establishment Clause “must be interpreted by
‘reference to historical practices and understandings.’”
Id. at 2428 (internal citations omitted).
16. The State’s police powers grant it broad discretion
to zone unless a court finds that a policy is “clearly
arbitrary and unreasonable, having no substantial relation
to the public health, safety, morals, or general welfare.”
Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365,
395 (1926).
17. The location of religious institutions is implicated
in zoning practices.
18. The practice of selling government lands with deed
restrictions was an early form of use-zoning and is
interpreted as a historical practice of zoning. Kennedy,
142 S. Ct. at 2427.
19. The [D]eed [R]estriction does not violate the
Establishment Clause of the United States Constitution.
Id.
12
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Article I, § 4 of the Hawai‘i Constitution
20. Article I, § 4 of the [Hawai‘i] Constitution is
coextensive with the First Amendment of the United States
Constitution.
21. The [D]eed [R]estriction does not violate Article I,
§ 4 of the Hawai‘i Constitution for the same reasons that it
does not violate the Establishment Clause of the First
Amendment of the United States Constitution.
22. Because the [D]eed [R]estriction does not violate
Article I, § 4 of the Hawai‘i Constitution, it cannot be
construed as a grant in violation of Article I, § 4; thus,
there is no violation of Article VII, § 4.
23. Even if Article I, § 4 of the Hawai‘i Constitution is
not coextensive with the Establishment Clause of the First
Amendment of the United States Constitution, the [D]eed
[R]estriction passes Constitutional muster under Lemon v.
Kurtzman, which requires that government policies (1) have
a secular purpose; (2) do not endorse or approve of
religion; and (3) do not create excessive entanglement with
religion. 403 U.S. 602, 620 (1971).
24. The [D]eed [R]estriction had a secular purpose of
zoning. Id.
25. The [D]eed [R]estriction allows for any religious
organization to benefit from the [P]roperty, so it does not
endorse or approve one religion over another. Id.
26. Not every form of government surveillance and
monitoring reaches this degree, and routine administrative
or compliance activities do not constitute impermissible
“interference of. . . secular authorities in religious
affairs.” Cammack v. Waihee, 932 F.2d 765, 780 (9th Cir.
1991).
27. The surveillance and monitoring required to enforce
the [D]eed [R]estriction do not present excessive
entanglement because they are no different than that of
what is required to enforce any other zoning regulation.
On April 13, 2023, the Circuit Court entered its Final
Judgment in favor of the State, and against Appellants.
13
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
C. Appellate Proceedings
On April 24, 2023, Appellants appealed to the ICA.
During the briefing period, we granted transfer to this court.
On appeal, Appellants contend that the Circuit Court
erred when it concluded that: (1) the practice of selling
government lands with deed restrictions was an early form of
use-zoning and is interpreted as a historical practice of zoning
(COL 18); (2) HRS § 515-6(b) does not void the Deed Restriction
(COL 13); (3) the Deed Restriction does not violate the Hawai‘i
Establishment Clause for the same reasons that it does not
violate the Federal Establishment Clause (COL 21), and even if
the Hawai‘i Establishment Clause is not coextensive with the
Federal Establishment Clause, the Deed Restriction passes
constitutional muster under Lemon (COL 23); and (4) the Deed
Restriction does not violate the Federal Establishment Clause
(COL 19).
In support of their points of error on appeal,
Appellants raise largely the same arguments and supporting
authority asserted in their MSJ. In brief, Appellants argue
that the State lacks any evidence - or explanatory connection -
to support its claim that the Territory of Hawai‘i used deed
restrictions historically as an early form of use-zoning.
Appellants further assert that HRS § 515-6(b) voids the Deed
Restriction because the restriction limits the use of real
14
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
property on the basis of religion, and the statute’s exemption
clause is inapplicable because the Property is not “held by a
religious institution.”
With respect to their constitutional arguments,
Appellants maintain that Lemon is the controlling test for
challenges under the Hawai‘i Establishment Clause, and that under
Lemon, the Deed Restriction must fail. Appellants also assert
that the Deed Restriction violates the Federal Establishment
Clause under Kennedy and its predecessor Federal Establishment
Clause jurisprudence.
In its responsive appellate briefing, the State
reasserts the arguments it raised in the Circuit Court. The
State contends that the Circuit Court’s Summary Judgment Order
and Final Judgment should be affirmed.
III. STANDARDS OF REVIEW
A. Summary Judgment
We review the Circuit Court’s grant or denial of
summary judgment de novo. Hawaii Cmty. Fed. Credit Union v.
Keka, 94 Hawai‘i 213, 221, 11 P.3d 1, 9 (2000). The standard for
granting a motion for summary judgment is settled:
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
15
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and the inferences drawn therefrom
in the light most favorable to the party opposing the
motion.
Id. (citations and internal quotation marks omitted) (formatting
altered).
We have further explained the burdens of the moving
and non-moving parties on summary judgment as follows:
The burden is on the party moving for summary judgment
(moving party) to show the absence of any genuine issue as
to all material facts, which, under applicable principles
of substantive law, entitles the moving party to judgment
as a matter of law. This burden has two components.
First, the moving party has the burden of producing support
for its claim that: (1) no genuine issue of material fact
exists with respect to the essential elements of the claim
or defense which the motion seeks to establish or which the
motion questions; and (2) based on the undisputed facts, it
is entitled to summary judgment as a matter of law. Only
when the moving party satisfies its initial burden of
production does the burden shift to the non-moving party to
respond to the motion for summary judgment and demonstrate
specific facts, as opposed to general allegations, that
present a genuine issue worthy of trial.
Second, the moving party bears the ultimate burden of
persuasion. This burden always remains with the moving
party and requires the moving party to convince the court
that no genuine issue of material fact exists and that the
moving part is entitled to summary judgment as a matter of
law.
French v. Hawaii Pizza Hut, Inc., 105 Hawai‘i 462, 470, 99 P.3d
1046, 1054 (2004) (citation and emphasis omitted). This court
has prescribed detailed guidance regarding how a moving party
may satisfy its initial burden on a motion for summary judgment,
providing that:
a summary judgment movant may satisfy [their] initial
burden of production by either (1) producing admissible
evidence to show there was no genuine issue of material
fact, or (2) showing that the non-moving party cannot carry
16
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
[their] burden of proof at trial. . . . [T]he movant
generally cannot support its initial burden of production
by pointing solely to the non-moving party's lack of
evidence if discovery has not concluded.
Ralston v. Yim, 129 Hawai‘i 46, 48, 292 P.2d 1276, 1278 (2013)
(citation omitted).
Here, the Circuit Court made findings of fact, but we
are reviewing that court’s summary judgment rulings.10 The
Circuit Court did not have an evidentiary hearing. Therefore,
we are not bound by the Circuit Court’s “findings” even if they
are unchallenged.11 See Malulani Grp., Ltd. v. Kaupo Ranch,
10 Appellants do not challenge the Circuit Court’s FOF 3 (“The
Territory of Hawai‘i engaged in an early form of use-zoning through the sale
of land with deed restrictions, including the sale of government lands to
religious organizations”). Appellants’ four points of error cite to and
challenge the Circuit Court’s “conclusions of law.” However, Appellants
treat COL 18 (“The practice of selling government lands with deed
restrictions was an early form of use-zoning and is interpreted as a
historical practice of zoning”) as a “finding of fact,” arguing that there is
no “substantial evidence” to support this holding. Under summary judgment
standards, the question is whether there are any genuine issues of material
fact regarding this finding.
11 Hawai‘i Rules of Civil Procedure (HRCP) Rule 56 governs summary
judgment, and provides, in relevant part, that summary judgment:
[s]hall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.
HRCP Rule 56(c) (eff. 2000) (emphasis added). HRCP Rule 52 governs findings
by the court, and provides that: “Findings of fact and conclusions of law are
unnecessary on decisions of motions under Rules 12 or 56 or any other motion
except as provided in subdivisions (b) and (c) of this rule.” HRCP Rule
52(a) (eff. 2000). The purpose of deciding summary judgment motions is to
determine whether material factual disputes exist, not to resolve them. See
Rodriguez v. Nishiki, 65 Haw. 430, 439, 653 P.2d 1145, 1151 (1982) (“It is
not within the province of the trial court at summary judgment to resolve
factual disputes.”); Dalton v. City & Cnty. of Honolulu, 51 Haw. 400, 403
n.2, 462 P.2d 199, 202 n.2 (1969) (“[D]isputed issues of fact cannot be
resolved on summary judgment.” (citation omitted)).
17
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Ltd., 133 Hawai‘i 425, 430 n.4, 329 P.3d 330, 335 n.4 (App. 2014)
(reviewing the circuit court’s grant of summary judgment, and
noting that “because the circuit court was addressing a summary
judgment motion, and did not hold any type of evidentiary
hearing, we apply the usual summary judgment principles and are
not bound by the circuit court’s findings, regardless of whether
those findings are challenged on appeal or not”). Rather, we
apply summary judgment standards, meaning that we review the
record de novo and “[t]he evidence must be viewed in the light
most favorable to the non-moving party[.]” Keka, 94 Hawai‘i at
221, 11 P.3d at 9 (citation and internal quotation marks
omitted). “The burden is on the party moving for summary
judgment (moving party) to show the absence of any genuine issue
as to all material facts, which, under applicable principles of
substantive law, entitles the moving party to judgment as a
matter of law.” French, 105 Hawai‘i at 470, 99 P.3d at 1054
(citation omitted).
Thus, although it may be helpful for a trial court to make findings
that specific material facts are uncontested, such findings – even if
unchallenged on appeal - do not bind this court nor alter our de novo
standard of review. See 10A Wright & Miller’s Federal Practice & Procedure
§ 2716 (4th ed. 2025) (“In considering an appeal from the disposition of a
Rule 56 motion, the appellate court normally will not have the district
court’s findings of fact and conclusions of law on the motion before it since
Rule 52(a)(3) makes these findings unnecessary on summary judgment motions.”)
(footnotes omitted); see also 17 Indiana L. Encyclopedia Judgment § 111,
Westlaw (database updated July 2025) (“Special findings of fact and
conclusions of law by the trial court in ruling on a summary judgment are not
binding on appeal and do not alter the appellate court’s standard of
review[.]”) (footnotes omitted).
18
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
We hold that findings of fact made by a trial court in
relation to a summary judgment ruling are not binding on appeal,
nor do they alter our de novo standard of review regarding a
summary judgment ruling. Consistent with this holding, we
overrule past decisions to the extent that they treat a trial
court’s unchallenged findings associated with summary judgment
rulings as binding on the appellate court. Accordingly, we
overrule this aspect of the opinions in the following cases:
Bremer v. Weeks, 104 Hawai‘i 43, 63, 85 P.3d 150, 170 (2004)
(reviewing the circuit court’s grant of summary judgment, and
treating unchallenged findings of fact on appeal as binding);
Price v. AIG Hawai‘i Insurance Co., 107 Hawai‘i 106, 108 n.3,
110, 111 P.3d 1, 3 n.3, 5 (2005) (reviewing the circuit court’s
grant of summary judgment and citing the correct de novo
standard of review, but treating an unchallenged finding of fact
on appeal as binding); and ʻŌlelo: The Corporation for Community
Television v. Office of Information Practices, 116 Hawai‘i 337,
348-49, 173 P.3d 484, 495-96 (2007) (reviewing the circuit
court’s grant of summary judgment but treating unchallenged
findings of fact on appeal as binding undisputed facts).
B. Statutory Interpretation
Questions of statutory interpretation are questions of law
to be reviewed de novo under the right/wrong standard.
Our statutory construction is guided by the following well
established principles:
19
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
our foremost obligation is to ascertain and give
effect to the intention of the legislature, which is
to be obtained primarily from the language contained
in the statute itself. And we must read statutory
language in the context of the entire statute and
construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression
used in a statute, an ambiguity exists[.]
In construing an ambiguous statute, the meaning of
the ambiguous words may be sought by examining the
context, with which the ambiguous words, phrases, and
sentences may be compared, in order to ascertain
their true meaning. Moreover, the courts may resort
to extrinsic aids in determining legislative intent.
One avenue is the use of legislative history as an
interpretive tool.
This court may also consider the reason and spirit of
the law, and the cause which induced the legislature
to enact it to discover its true meaning.
Lingle v. Hawai‘i Gov’t Emps. Ass’n, AFSCME, Local 152, AFL-CIO,
107 Hawai‘i 178, 183, 111 P.3d 587, 592 (2005) (internal
quotation marks, brackets, and ellipses omitted) (quoting Guth
v. Freeland, 96 Hawai‘i 147, 149-50, 28 P.3d 982, 984-85 (2001)).
C. Constitutional Law
“We answer questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. Thus, we review questions of
constitutional law [de novo] under the right/wrong standard.”
West Maui Resort Partners LP v. Cnty. of Maui, 154 Hawai‘i 121,
132, 547 P.3d 454, 465 (2024) (internal quotation marks omitted)
(quoting Gardens at West Maui Vacation Club v. Cnty. of Maui, 90
Hawai‘i 334, 339, 978 P.2d 772, 777 (1999)).
20
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
“Issues of constitutional interpretation present questions
of law that are reviewed de novo.” Blair v. Harris, 98
Hawai‘i 176, 178, 45 P.3d 798, 800 (2002) (citation
omitted). In construing the constitution, this court
observes the following basic principles:
Because constitutions derive their power and
authority from the people who draft and adopt them,
we have long recognized that the Hawaii Constitution
must be construed with due regard to the intent of
the framers and the people adopting it, and the
fundamental principle in interpreting a
constitutional provision is to give effect to that
intent. This intent is to be found in the instrument
itself.
The general rule is that, if the words used in a
constitutional provision are clear and unambiguous,
they are to be construed as they are written. In
this regard, the settled rule is that in the
construction of a constitutional provision the words
are presumed to be used in their natural sense unless
the context furnishes some ground to control,
qualify, or enlarge them.
Moreover, a constitutional provision must be
construed in connection with other provisions of the
instrument, and also in the light of the
circumstances under which it was adopted and the
history which preceded it.
Hanabusa v. Lingle, 105 Hawai‘i 28, 31-32, 93 P.3d 670, 673-
74 (2004) (brackets omitted) (quoting Blair, 98 Hawai‘i at
178-79, 45 P.3d at 800-01).
IV. DISCUSSION
The Circuit Court granted summary judgment for the
State, holding that the Territory’s sale of government land with
deed restrictions was an early form of use-zoning. The Circuit
Court further concluded that the Deed Restriction was not voided
by HRS § 515-6(b), and instead came within the exemption of that
statute, and that the Deed Restriction did not violate the
Hawai‘i Establishment Clause or the Federal Establishment Clause.
21
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
In this appeal, Appellants challenge each of these Circuit Court
rulings. The parties agree that this case should be decided on
summary judgment and based on the record before this court.
We conclude that HRS § 515-6(b) is not dispositive in
this case. Rather, the statute’s applicability depends on the
constitutionality of the Deed Restriction. We further conclude
that, given the evidence in the record, the sale of the Property
in 1922 with the Deed Restriction was not an early form of use-
zoning. The record does not support the Circuit Court’s
determination in this regard. Ultimately, we hold that the
State’s action to enforce the Deed Restriction, requiring that
the Property be used “for Church purposes only” or else the
Property would revert to the State, violates Hawai‘i’s
Establishment Clause in article I, section 4 of the Hawai‘i
Constitution. We resolve this appeal based on the Hawai‘i
Constitution. In doing so, we need not consider the Federal
Establishment Clause.
A. Hawai‘i’s Historical and Legal Landscape
The subject Land Patent No. 8039 was issued by the
Territory of Hawai‘i in 1922, to Heber J. Grant, Trustee for the
LDS Church. A brief overview of the relevant historical and
legal landscape is helpful to provide context for the 1922 Land
Patent and the analysis of the issues before this court.
22
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
On July 7, 1898, the United States annexed Hawai‘i with
the passage of the Newlands Joint Resolution. See Newlands
Resolution, H.R.J. Res. 259, 55th Cong., 30 Stat. 750 (1898)
(Newlands Resolution). The Newlands Resolution “cede[d] and
transfer[red] to the United States the absolute fee and
ownership of all public, Government or Crown lands, . . .
belonging to the Government of the Hawaiian Islands, together
with every right and appurtenance thereunto appertaining[.]”
Newlands Resolution, at 750; see Rice v. Cayetano, 528 U.S. 495,
505 (2000); Trustees of the Off. of Hawaiian Affs. v. Yamasaki,
69 Haw. 154, 159, 737 P.2d 446, 449 (1987). The Newlands
Resolution also provided that:
The existing laws of the United States relative to public
lands shall not apply to such lands in the Hawaiian
Islands; but the Congress of the United States shall enact
special laws for their management and disposition[.]
Newlands Resolution, at 750.
Less than two years later, on April 30, 1900, the
United States promulgated the Organic Act, which established
Hawai‘i as an incorporated territory of the United States. Act
of April 30, 1900, Pub. L. No. 56-339, 31. Stat. 141 (Organic
Act); see Rice, 528 U.S. at 505; Downes v. Bidwell, 182 U.S.
244, 305 (1901) (White, J., concurring) (“[O]n April 30, 1900,
an act for the government of Hawaii was approved, by which the
23
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Hawaiian islands were given the status of an incorporated
territory[.]”).
The Organic Act created a government for the Territory
of Hawai‘i and established the applicable law for the Territory.
Section 5 of the Organic Act provided that “the Constitution . .
. shall have the same force and effect within the said Territory
as elsewhere in the United States[.]” Organic Act, at 141-42.
Section 6 of the Organic Act stated that “the laws of Hawaii not
inconsistent with the Constitution or laws of the United States
or the provisions of this Act shall continue in force, subject
to repeal or amendment by the legislature of Hawaii or the
Congress of the United States.” Id. at 142.
Given section 5 of the Organic Act and its legislative
history, the U.S. Supreme Court recognized that “Congress thus
expressed a strong desire to apply the Constitution [to the
Territory of Hawai‘i] without qualification.” Duncan v.
Kahanamoku, 327 U.S. 304, 318 (1946). For almost sixty years –
between the passage of the Organic Act in 1900 and until
Hawai‘i’s admission as a state in August 1959 - the Territory of
Hawai‘i was governed by the Constitution of the United States,
the Organic Act (as amended), and the Revised Laws of Hawai‘i
(RLH) that were not inconsistent with the U.S. Constitution or
the Organic Act.
24
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Section 73 of the Organic Act (1915) entitled
“Commissioner of Public Lands” granted authority to the
Commissioner of Public Lands (Commissioner) and the Board of
Public Lands (Board) to manage and dispose of government and
crown lands classified as “public lands.” See Organic Act,
§ 73, printed as amended in RLH (1915) at 47-51 (Organic Act
(1915)). In 1922, when the Land Patent in this case was issued,
Section 73 of the Organic Act (1915) provided in relevant part:12
The Commissioner may also, with [the approval of the
Governor], issue, for a nominal consideration, to any
church or religious organization, or person or persons or
corporation representing it, a patent for any parcel of
public land occupied continuously for not less than five
years heretofore and still occupied by it as a church site
under the laws of Hawaii.
No sale of lands for other than homestead purposes,
except as herein provided, and no exchange by which the
Territory shall convey lands exceeding either forty acres
in area or five thousand dollars in value shall be made.
No lease of agricultural lands exceeding forty acres in
area, or of pastoral or waste lands exceeding two hundred
acres in area, shall be made without the approval of two-
thirds of the board of public lands which is hereby
constituted, the members of which are to be appointed by
the governor as provided in section eighty of this Act, and
until the legislature shall otherwise provide said board
shall consist of six members and its members be appointed
for terms of four years: Provided, however, That the
Commissioner may, with the approval of said board, sell for
residence purposes lots and tracts, not exceeding three
acres in area, and that sales of government lands may be
made upon the approval of said board whenever necessary to
locate thereon railroad rights of way, railroad tracks,
side tracks, depot grounds, pipe lines, irrigation ditches,
pumping stations, reservoirs, factories and mills and
appurtenances thereto, including houses for employees,
mercantile establishments, hotels, churches, and private
12 The Organic Act was amended multiple times. In 1922, the
applicable version of Section 73 was not divided into lettered paragraphs.
Rather, paragraph demarcations for Section 73 were added in the 1925 version
of the Organic Act, with materially similar language as the prior version of
Section 73. For reference, the relevant paragraph in the 1925 version of the
Organic Act is Section 73(k).
25
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
schools; and all such sales shall be limited to the amount
actually necessary for the economical conduct of such
business or undertaking: Provided further, That no exchange
of government lands shall hereafter be made without the
approval of two-thirds of the members of said board, and no
such exchange shall be made except to acquire lands
directly for public uses.
Id. at 49-50 (emphases added).
Portions of Section 73 of the Organic Act (1915)
appear to have been codified in RLH §§ 357 and 358 (1915).
In 1922, RLH § 357 (1915) addressed transfer of land
to churches or religious organizations, stating:
Preference right to purchase, given when. Patents to
churches, etc.
. . . .
The commissioner may also, with [the approval of the
Governor], issue, for a nominal consideration, to any
church or religious organization, or person or persons or
corporation representing it, a patent for any parcel of
public land occupied continuously for not less than five
years heretofore and still occupied by it as a church site
under the laws of Hawaii. [Org. Act, pt. of s. 73.]
(Emphases added.)
In turn, in 1922, RLH § 358 (1915) appears to have
codified other parts of Section 73 of the Organic Act. RLH
§ 358 (1915) stated:
Sales, exchanges, and leases: purposes, limitations.
Exchanges: how authorized. No sale of lands for other than
homestead purposes, except as in this chapter provided, and
no exchange by which the Territory shall convey lands
exceeding either forty acres in area or five thousand
dollars in value shall be made. No lease of agricultural
lands exceeding forty acres in area, or of pastoral or
waste lands exceeding two hundred acres in area, shall be
made without the approval of two-thirds of the board of
public lands: Provided, however, that the commissioner may,
with the approval of the board of public lands, sell for
residence purposes lots and tracts, not exceeding three
acres in area, and that sales of government lands may be
made upon the approval of said board whenever necessary to
locate thereon railroad rights of way, railroad tracks,
26
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
side tracks, depot grounds, pipe lines, irrigation ditches,
pumping stations, reservoirs, factories and mills and
appurtenances thereto, including houses for employees,
mercantile establishments, hotels, churches, and private
schools, and all such sales shall be limited to the amount
actually necessary for the economical conduct of such
business or undertaking: Provided, further, that no
exchange of government lands shall hereafter be made
without the approval of two-thirds of the members of said
board, and no such exchange shall be made except to acquire
lands directly for public uses. [Org. Act, pt. of s. 73.]
(Emphases added.)
As expressly referenced in the Land Patent issued to
the LDS Church in this case, the Property was granted “in
conformity with the provisions of Section 73” of the Organic
Act, and “in pursuance of the provisions of Section 357 of the
Revised Laws of the Territory of Hawaii of 1915[.]”
Thirty-seven years after the Land Patent in this case
was issued, Hawai‘i became a state on August 21, 1959. See
Hawai‘i Admission Act, Pub. L. No. 86-3, § 7(c), 73 Stat. 4, 8
(1959) (Admission Act); Proclamation No. 3309, 35 Fed. Reg. 6868
(Aug. 21, 1959). Hawai‘i’s Constitution became effective that
same date, which included the Hawai‘i Establishment Clause,
stating in relevant part: “No law shall be enacted respecting an
establishment of religion[.]” Haw. Const. art. I, § 3 (1959).
B. The Evidence Does Not Establish That Sale of the Property
with the Deed Restriction Was an Early Form of Use-Zoning
In its summary judgment ruling, in FOF 3 and COL 18,
the Circuit Court found that the practice of selling government
lands with deed restrictions was an early form of use-zoning and
27
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
interpreted it as a historical practice of zoning. Appellants
argue that the record lacks any evidence, let alone substantial
evidence, to support the State’s claim that the Territory of
Hawai‘i utilized deed restrictions as a form of early zoning. We
agree. The evidence in the record does not support the Circuit
Court’s FOF 3 or COL 18.
As part of its MSJ, the State submitted sixteen land
patents issued to churches or religious associations (including
for the subject Property) and one land patent issued to an
individual for a cemetery site, all issued between 1921 to 1925.
Each of the land patents contained a restriction similar to the
Deed Restriction in this case; that is, the land was to be used
for church purposes (or church and cemetery purposes) only, or
the grant would become void and the land would revert to the
Territory. The State also attached ten maps to its MSJ, all of
which are titled “Hawaii Territory Survey,” with references to
different locations on the islands of Hawai‘i, Maui, Kaua‘i,
Moloka‘i or O‘ahu. Some of the maps indicate they relate to
homesteads, one map indicates it refers to government lots and
remnants, and other maps have no such designation or are
illegible. To the extent that dates on the maps can be read
(not all are legible), they appear to be dated between 1901 and
1923. The State relies upon these exhibits to purportedly show
how land was subdivided and zoned by the territorial government.
28
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
All of the State’s exhibits were submitted pursuant to
the declaration of the State’s counsel, who attested that
counsel had “personal knowledge of the facts contained in this
declaration and [I] am competent to testify to them.” Counsel’s
declaration then stated that each exhibit was a true and correct
copy of the listed land patent or territorial map. No other
information was provided. Given that each exhibit is a land
patent or territorial map from about a hundred years ago, and
neither counsel nor any other witness provides any basis to
establish personal knowledge or that counsel was competent to
testify to the matters in the declaration, it is doubtful that
the exhibits were admissible under Rule 56(e) of the Hawai‘i
Rules of Civil Procedure (HRCP).13 Nonetheless, Appellants did
not challenge admission of the State’s exhibits in the Circuit
Court and make no such argument in this appeal. Therefore,
Appellants have waived any challenge to the admission of the
State’s exhibits and we will consider them. See Querubin v.
Thronas, 107 Hawai‘i 48, 61 n.5, 109 P.3d 689, 702 n.5 (2005);
Price, 107 Hawai‘i at 110-12, 111 P.3d at 5-7 (holding that the
13 HRCP Rule 56(e) states in relevant part:
(e) Form of affidavits; further testimony; . . .
Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated
therein. Sworn or certified copies of all papers or parts
thereof referred to in an affidavit shall be attached
thereto or served therewith.
29
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
plaintiff waived his argument that depositions in support of
summary judgment were inadmissible, where plaintiff failed to
challenge admissibility in the circuit court).
The land patents submitted by the State provide
evidence that the Territorial Government sold property to other
churches or religious institutions in a manner similar to the
Property in this case. However, these land patents do not show
or reflect an early form of use-zoning, as alleged by the State.
Indeed, they do not demonstrate that territorial property was
sold for other uses authorized under the Organic Act (1915) or
RLH § 358 - such as for homestead, residence, employee housing,
mercantile establishments, hotels, or school uses - in a similar
way as churches. There is no land patent in evidence for these
other uses, and thus nothing to establish that sales of land for
these other uses were accompanied with restrictions similar to
the Deed Restriction in this case. In short, sixteen of the
land patents only show a pattern of how territorial land in the
1920s was sold to churches with restrictions and does not
establish that land patents were used as an “early form of use-
zoning,” as found by the Circuit Court.
Additionally, the maps submitted by the State are
illegible in many respects and are by no means self-explanatory.
It can be discerned that the maps show certain areas on the
islands of Hawai‘i, Maui, Kaua‘i, Moloka‘i or O‘ahu with varying
30
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
types of lots sketched in; some maps indicate they relate to
homesteads, one indicates it related to government lots and
remnants, another has a line stating “Kainalo School Lot
Survey”, and others have no such indication. There simply is no
clarity or consistency as to what the maps actually show, the
purpose for which they were prepared, where they were obtained,
or whether they in fact show an “early form of use-zoning” by
the Territorial Government in the 1920s. Further, nothing in
the maps indicate restrictions on the use of properties for
specified purposes or that properties could revert to the
Territory.
The State prevailed on its summary judgment motion and
thus was the movant. As the movant, the State had the initial
burden of proof and we must view the State’s exhibits in the
light most favorable to the Appellants. French, 105 Hawai‘i at
470, 99 P.3d at 1054; Ralston, 129 Hawai‘i at 48, 292 P.2d at
1278. Here, based on summary judgment standards, the State did
not carry its burden to establish that the practice of selling
government lands with deed restrictions was an early form of
use-zoning. We need not address Appellants’ other arguments
related to this conclusion. The Circuit Court erred in its FOF
3 and COL 18 rulings for the State.
31
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
C. Statutory Analysis Under HRS § 515-6(b)
Appellants argue that the Deed Restriction on the
Property should be voided based on, alternatively, HRS § 515-
6(b), the Hawai‘i Establishment Clause, or the Federal
Establishment Clause. “Courts generally will not decide a
constitutional issue unless necessary to the determination of
the merits of the cause under consideration.” Smith v. Smith,
56 Haw. 295, 304, 535 P.2d 1109, 1116 (1975) (citations
omitted); see also State v. Lo, 66 Haw. 653, 657, 675 P.2d 754,
757 (1983) (“[I]f a case can be decided on either of two
grounds, one involving a constitutional question, the other a
question of statutory construction or general law, this court
will decide only the latter.” (citation, ellipsis, and brackets
omitted)); State v. Poaipuni, 98 Hawai‘i 387, 401, 49 P.3d 353,
367 (2002) (Moon, C.J., concurring) (“It is well-settled that
important questions regarding the interpretation of
constitutional provisions should ordinarily be decided only
where such decisions are necessary to the resolution of a case.”
(citation omitted)).
Here, given Appellants’ alternative grounds for
challenging the Circuit Court’s decision upholding the Deed
Restriction, we first address their arguments under HRS § 515-
32
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
6(b) and conclude they do not prevail on this contention.14 In
granting the State’s MSJ related to HRS § 515-6(b), the Circuit
Court concluded as follows:
10. HRS § 515-6(b) states:
Every condition, restriction, or prohibition,
including a right of entry or possibility of
reverter, that directly or indirectly limits the
use or occupancy of real property on the basis of
race, sex, including gender identity or
expression, sexual orientation, color, religion,
marital status, familial status, ancestry,
disability, age, or human immunodeficiency virus
infection is void, except a limitation, on the
basis of religion, on the use of real property
held by a religious institution or organization or
by a religious or charitable organization
operated, supervised, or controlled by a religious
institution or organization, and used for
religious or charitable purposes.
Id.
11. HRS § 515-6(b) provides an exemption that permits any
party to reserve a covenant for religious use when
transacting with a religious organization.
12. The [D]eed [R]estriction “for Church purposes only”
is included in the exemption clause of HRS § 515-6(b).
13. HRS § 515-6(b) does not void the [D]eed
[R]estriction.
(Emphasis added.)
Appellants challenge the Circuit Court’s ruling on HRS
§ 515-6(b) by arguing that they now own the Property and are not
religious institutions. Thus, they assert, the Property is no
longer “held by a religious institution or organization,” such
that the exemption clause in HRS § 515-6(b) does not apply, and
the statute voids the Deed Restriction. It is undisputed that
14 There is no challenge in this case to the validity of HRS § 515-
6(b), only whether the Circuit Court properly construed it.
33
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
neither Hilo Bay nor Keaukaha Ministry are religious
institutions or organizations, that Keaukaha Ministry does not
conduct religious activity on the Property, and that Keaukaha
Ministry only uses its portion of the Property for cemetery
purposes and not church purposes. There is also nothing in the
record to indicate that Hilo Bay or Keaukaha Ministry are
religious or charitable organizations operated, supervised, or
controlled by a religious institution or organization.
As explained more fully below, we conclude that the
Circuit Court erred in its interpretation, application, and
ruling on HRS § 515-6(b). Appellants are correct that the
record fails to show that the exemption clause in HRS § 515-6(b)
is applicable. Thus, the State should not have prevailed with
respect to HRS § 515-6(b). However, Appellants also cannot
prevail under HRS § 515-6(b), because their argument completely
ignores the requirements under the Deed Restriction. Where it
is undisputed that Appellants are not religious institutions,
they ignore whether they should own the Property in the first
place, given the Deed Restriction. In this case, HRS § 515-6(b)
does not resolve the dispute between the parties.
1. Plain Language of HRS § 515-6(b)
Interpretation of HRS § 515-6(b) is an issue of first
impression and we start with the language of the statute.
34
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Citizens Against Reckless Dev. v. Zoning Bd. of Appeals, 114
Hawai‘i 184, 193, 159 P.3d 143, 152 (2007) (“[T]he fundamental
starting point for statutory interpretation is the language of
the statute itself . . . where the statutory language is plain
and unambiguous, [the court’s] sole duty is to give effect to
its plain and obvious meaning.” (citation omitted)). Moreover,
“[the court] must read statutory language in the context of the
entire statute and construe it in a manner consistent with its
purpose.” Lingle, 107 Hawai‘i at 183, 111 P.3d at 592 (citation
omitted).
HRS § 515-6(b) (2018) governing restrictive covenants
and conditions provides, in relevant part:
Every condition, restriction, or prohibition,
including a right of entry or possibility of reverter, that
directly or indirectly limits the use or occupancy of real
property on the basis of . . . religion . . . is void,
except a limitation, on the basis of religion, on the use
of real property held by a religious institution or
organization or by a religious or charitable organization
operated, supervised, or controlled by a religious
institution or organization, and used for religious or
charitable purposes.
(Emphases added.)
The original version of HRS § 515-6 was passed in 1967
via Act 193.15 The stated purpose of Act 193 was to generally
15 The original iteration of HRS § 515-6(b), adopted in 1967, was as
follows:
(b) Every condition, restriction, or prohibition,
including a right of entry or possibility of reverter,
which directly or indirectly limits the use or occupancy of
real property on the basis of race, color, religion, or
national origin, is void, except a limitation of use on the
basis of religion of real property held by a religious
35
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
prohibit discrimination in connection with real property
transactions:
The purpose of this Act is to secure for all individuals
within the State freedom from discrimination because of
race, color, religion, or national origin in connection
with real property transactions, and thereby to protect
their interest in personal dignity, to make available to
the State their full productive capacities, to secure the
State against domestic strife and unrest, to preserve the
public safety, health, and general welfare, and to promote
the interests, rights and privileges of individuals within
the State.
1967 Haw. Sess. Laws Act 193, § 1 at 194-95.
The Senate Standing Committee Report from 1967,
indicates that the purpose of HRS § 515-6(b)’s exemption clause
was to benefit religious institutions: “Section 6 makes
restrictive covenants void, but this kind of limitation on use
or occupancy of real property is made permissible in exceptions
for the benefit of religious institutions.” S. Stand. Comm.
Rep. No. 298, in 1967 Senate Journal, at 982.
Under HRS § 515-6(b), every restriction that directly
or indirectly limits the use or occupancy of real property on
the basis of religion is void, “except a limitation, on the
institution or organization or by a religious or charitable
organization operated, supervised, or controlled by a
religious institution or organization, and used for
religious or charitable purposes.
1967 Haw. Sess. Laws Act 193, § 6 at 196.
HRS § 515-6(b) was amended in later years to include other bases
of discrimination, including sex and ancestry (1971); physical handicap
(1976); marital status, parental status, and HIV (1989); age (1992); and
gender identity and expression and sexual expression (2005).
36
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
basis of religion, on the use of real property held by a
religious institution or organization or by a religious or
charitable organization operated, supervised, or controlled by a
religious institution or organization, and used for religious or
charitable purposes” (exemption clause). (Emphasis added.) In
order for the exemption clause to apply to a religion-based
restriction on real property, the subject property must be: (1)
“held by a religious institution or organization or by a
religious or charitable organization operated, supervised, or
controlled by a religious institution or organization” and (2)
“used for religious or charitable purposes.” HRS § 515-6(b)
(emphases added).
Contrary to Appellants’ arguments in this case, there
is no language in HRS § 515-6(b) indicating that the legislature
contemplated the provision to apply only to real property
transactions from specific grantors in order to fall under the
statute’s purview. Likewise, there are no references to other
provisions that suggests that the legislature only intended the
general voidance or exemption clauses to apply to deed
restrictions imposed solely by religious institutions as
grantors.
Rather, the exemption clause in HRS § 515-6(b) by its
plain language specifies that the relevant inquiry, in assessing
whether the exemption clause applies, hinges on whether (1) the
37
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
party currently holding the property is a “religious institution
or organization or a religious or charitable organization
operated, supervised, or controlled by a religious institution
or organization, and” (2) the property is used for “religious or
charitable purposes.” HRS § 515-6(b). The word “held” in the
statute should be construed as the past participle of the word
“hold” which means “to have ownership or possession of[.]”
Hold, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/hold [https://perma.cc/7ADJ-CD54]. Thus,
when the exemption clause is read in full, a plain understanding
and meaning of the phrase “real property held by a religious
institution or organization” indicates that the real property
must be currently or presently “own[ed] or possess[ed]” by a
religious institution or organization, for the imposition of a
religion-based restriction on real property to be within the
exemption under the statute. This interpretation aligns with
the purpose underlying the HRS § 515-6(b) exemption clause to
benefit religious institutions.
2. The Circuit Court Erred by Granting Summary Judgment
For the State on Appellants’ Statutory Claim Under HRS
§ 515-6(b)
Appellants’ primary statutory argument is that they
are not religious institutions, the exemption clause in HRS
§ 515-6(b) is thus not applicable to them, and therefore the
Deed Restriction from 1922 must be voided by HRS § 515-6(b),
38
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
which was adopted in 1967. This argument puts the cart before
the horse. It is based on the assumption that Appellants need
not, in the first place, be concerned with complying with the
Deed Restriction. If the Deed Restriction was followed, the
Appellants apparently would be in breach because they contend
they are not religious institutions, indicating they are not
using the Property for church purposes. In turn, under the 1922
Land Patent, the Property would revert to the State.
Appellants appear to argue, nonetheless, that even if
they violated a valid Deed Restriction, they are now the owners
of the Property, they are not religious institutions, and thus
the Deed Restriction can be voided by HRS § 515-6(b). As the
State argues, this logic cannot stand. Rather, Appellants’
argument under HRS § 515-6(b) boils down to whether they can
properly hold the Property, which in turn requires that we
address whether the Deed Restriction is constitutionally valid.
If the Deed Restriction is constitutionally sound, Appellants
cannot hold the Property if the Property is not being used for
church purposes, and their argument under HRS § 515-6(b) is
moot. If, on the other hand, the Deed Restriction is
constitutionally invalid, then it cannot be enforced by the
State and Appellants’ arguments under HRS § 515-6(b) are also
moot.
39
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Hence, with respect to HRS § 515-6(b), it was not
proper for the Circuit Court to grant summary judgment for
either party based on this statutory provision. The Circuit
Court erred in granting summary judgment for the State pursuant
to HRS § 515-6(b).
D. Constitutional Analysis
The Hawai‘i Establishment Clause, set forth in article
I, section 4 of the Hawai‘i Constitution, states: “No law shall
be enacted respecting an establishment of religion[.]”16 The
Hawai‘i Establishment Clause is similar to the Federal
Establishment Clause, which states: “Congress shall make no law
respecting an establishment of religion[.]” U.S. Const. amend.
I, § 1. The Federal Establishment Clause was made applicable to
the states pursuant to the Fourteenth Amendment. Cantwell v.
Connecticut, 310 U.S. 296, 303 (1940) (“The First Amendment
declares that Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof. The Fourteenth Amendment has rendered the legislatures
of the states as incompetent as Congress to enact such laws.”);
Everson v. Board of Educ. of Ewing Twp., 330 U.S. 1, 8, 13
16 Article I, section 4 of the Hawai‘i Constitution provides in full:
“No law shall be enacted respecting an establishment of religion, or
prohibiting the free exercise thereof, or abridging the freedom of speech or
of the press or the right of the people peaceably to assemble and to petition
the government for a redress of grievances.”
40
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
(1947) (recognizing that the Fourteenth Amendment made the
Federal Establishment Clause applicable to the states).
Appellants invoke both the Hawai‘i Establishment Clause
and the Federal Establishment Clause in asserting that the Deed
Restriction is invalid. In State v. Wilson, 154 Hawai‘i 8, 13,
543 P.3d 440, 445 (2024), this court determined “that the proper
sequence to consider matching constitutional text is to
interpret the Hawai‘i Constitution before its federal
counterpart. Only if the Hawai‘i Constitution does not reach the
minimum protection provided by a parallel federal constitutional
right should this court construe the federal analogue.”
We first address the Hawai‘i Establishment Clause, and
we hold that the Hawai‘i Establishment Clause precludes the State
from enforcing the Deed Restriction.
1. The Hawai‘i Establishment Clause
This court has “long recognized that the Hawai‘i
Constitution must be construed with due regard to the intent of
the framers and the people adopting it, and the fundamental
principle in interpreting a constitutional provision is to give
effect to that intent. This intent is to be found in the
instrument itself.” Kaheawa Wind Power, LLC v. Cnty. of Maui,
146 Hawai‘i 76, 87-88, 456 P.3d 149, 160-61 (2020) (citation
omitted). “Moreover, a constitutional provision must be
41
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
construed in connection with other provisions of the instrument,
and also in the light of the circumstances under which it was
adopted and the history which preceded it.” Id. at 88, 456 P.3d
at 161.
In State v. Kahlbaun, 64 Haw. 197, 638 P.2d 309
(1981), this court explained that if the text of a
constitutional provision is ambiguous, extrinsic aids may be
examined to determine the intent of the framers and the people
adopting it. Id. at 201-02, 638 P.2d at 314.
Another established rule of construction is that a court
may look to the object sought to be accomplished and the
evils sought to be remedied by the amendment, along with
the history of the times and the state of being when the
constitutional provision was adopted. In addition, we can
also look to the understanding of the voters who adopted
the constitutional provision[.]
Id. at 202, 638 P.2d at 315 (citations omitted); see also Nelson
v. Hawaiian Homes Comm’n, 127 Hawai‘i 185, 198, 277 P.3d 279, 292
(2012); Kalaeloa Ventures, LLC v. City & Cnty. of Honolulu, 143
Hawai‘i 103, 109, 424 P.3d 458, 464 (2018); Huihui v. Shimoda, 64
Haw. 527, 531, 644 P.2d 968, 971 (1982); State v. Miyasaki, 62
Haw. 269, 281, 614 P.2d 915, 922 (1980); Hawaii Gov’t Emps.’
Ass’n v. Cnty. of Maui, 59 Haw. 65, 80-81, 576 P.2d 1029, 1039
(1978).
With these guiding principles we look to the intent of
the framers and the voters who adopted the Hawai‘i Establishment
42
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Clause, the circumstances surrounding its promulgation, and the
history of the times and the state of being when it was adopted.
In 1950, the Hawai‘i Constitution was initially framed
by a Constitutional Convention. 1949 Haw. Sess. Laws Act 334,
§ 1 at 661. As this court concisely stated in Huihui:
Delegates to the 1950 Constitutional Convention of Hawaii
drafted this state’s first constitution, which was ratified
by the electorate in 1950 and later amended by the people
and approved by Congress by Act of March 18, 1959, Pub. L.
86-3, 73 Stat. 4. The constitution became the organic law
of this state upon its admission into the Union on August
21, 1959.
64 Haw. at 530 n.3, 644 P.2d at 971 n.3.
The Hawai‘i Establishment Clause originated as a part
of Proposal Number 3, section 5 (Section 5), as introduced in
the Constitutional Convention of Hawai‘i of 1950. Comm. Prop.
No. 3 in 2 Proceedings of the Constitutional Convention of
Hawai‘i of 1950 (Proceedings of 1950), at 871 (1960). Section 5
provided that: “No law shall be passed respecting the
establishment of religion, or prohibiting the free exercise
thereof.” Id. The Committee of the Whole Report for Section 5
explained in its recommendation that:
Since this section is derived from the first clause of the
1st Amendment to the Federal Constitution, with which your
Committee is in full accord, it recommends the adoption of
this section. By doing so, this State will be availing
itself of the decisions of the Federal Courts construing
said clause of the Federal Constitution.
Comm. of the Whole Rep. No. 5 in 1 Proceedings of 1950, at 300
(emphases added). Proposal Number 3 sections 5, 7, and 19,
which individually passed their first and second readings
43
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
unanimously, were ultimately combined by the Committee on Style
to create article I, section 3, which read:
SECTION 3. Freedom of Religion, Speech, Press,
Assembly and Petition. No law shall be enacted respecting
an establishment of religion or prohibiting the free
exercise thereof, or abridging the freedom of speech or of
the press, or the right of the people peaceably to assemble
and to petition the government for a redress of grievances.
Stand. Comm. Rep. No. 88 in 1 Proceedings of 1950, at 244-45
(brackets omitted). The Committee on Style reasoned that the
purpose for combining those sections into one single section was
“(1) [t]o bring related matters together, and (2) [t]o follow
the more traditional practice of the Federal Constitution.” Id.
at 243 (formatting altered).
On June 14, 1950, article I, section 3 unanimously
passed third reading, as amended by the Committee on Style. See
1 Proceedings of 1950, at 99.
The Hawai‘i Constitution went into effect on August 21,
1959, as amended by Congress.17 Proclamation No. 3309, 35 Fed.
17 Following the 1950 Constitutional Convention, the Hawai‘i
Constitution was “adopted by a vote of the people of [Hawai‘i] in an election
held on November 7, 1950[.]” See Proclamation No. 3309, 35 Fed. Reg. 6868
(Aug. 21, 1959). On March 18, 1959, Congress approved the 1950 Hawai‘i
Constitution, contingent on proposed amendments to be submitted to the people
of Hawai‘i for a vote – none of which are relevant to this case. Admission
Act, Pub. L. No. 86-3, § 7(b), 73 Stat. 4, 7-8 (1959). Congress’ proposed
amendments were subsequently adopted by the people of Hawai‘i at an election
held on June 27, 1959.
After the Hawai‘i Constitution went into effect in 1959, there were no
substantive amendments to the Hawai‘i Establishment Clause. The provision was
renumbered from article I, section 3 to article I, section 4 following the
1978 Constitutional Convention, after a new section was added to the Hawai‘i
Constitution. See State Constitution in 1 Proceedings of the Constitutional
Convention of Hawai‘i of 1978, at 1148-49 (1980).
44
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Reg. 6868 (Aug. 21, 1959); see Admission Act, Pub. L. No. 86-3,
§ 7(b), 73 Stat. 4, 7-8 (1959).
With this historical context, the framers’ intent
regarding Hawai‘i’s Establishment Clause is best articulated by
the Committee of the Whole Report during the 1950 Constitutional
Convention. The committee first stated that the provision was
based on the Federal Establishment Clause, with which the
committee was “in full accord.” Comm. of the Whole Rep. No. 5
in 1 Proceedings of 1950, at 300. The committee recommended
adoption of the proposal because “[b]y doing so, this State will
be availing itself of the decisions of the Federal Courts
construing said clause of the Federal Constitution.” Id. In
1950, the proposed language was “No law shall be passed
respecting the establishment of religion[.]” Ultimately, the
Hawai‘i Establishment Clause, promulgated as part of Hawai‘i’s
Constitution in 1959, states: “No law shall be enacted
respecting an establishment of religion[.]” Haw. Const. art. I,
§ 4. We find nothing in the history between 1950 and 1959, or
the two-word difference between the original proposal and the
final version of the Hawai‘i Establishment Clause, to suggest a
different intent from what was stated by the Committee of the
Whole in 1950.
In light of the guidance from the framers, we next
consider federal court decisions regarding the Federal
45
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Establishment Clause, before and in the time period our state
constitution was proposed, adopted by the electorate, and became
effective. Such case law provides the best indication of what
the framers and voters intended by proposing and adopting the
Hawai‘i Establishment Clause. Moreover, this approach is
consistent with this court’s long-standing principles in
construing our state constitution to consider “the history of
the times and the state of being when [a] constitutional
provision was adopted.” Kahlbaun, 64 Haw. at 202, 638 P.2d at
315; see also Kaheawa Wind Power, LLC, 146 Hawai‘i at 87-88, 456
P.3d at 160-61.
Ultimately, however, when we consider federal law
regarding textually similar constitutional provisions, we must
decide the best course for our state under the Hawai‘i
Constitution:
As the ultimate judicial tribunal in this state, this court
has final, unreviewable authority to interpret and enforce
the Hawaii Constitution. We have not hesitated in the past
to extend the protections of the Hawaii Bill of Rights
beyond those of textually parallel provisions in the
Federal Bill of Rights when logic and a sound regard for
the purposes of those protections have so warranted.
State v. Tanaka, 67 Haw. 658, 661-62, 701 P.2d 1274, 1276 (1985)
(internal quotation marks and brackets omitted) (quoting State
v. Kaluna, 55 Haw. 361, 369, 520 P.2d 51, 58 (1974)); see also
Huihui, 64 Haw. at 531, 644 P.2d at 971.
46
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
2. The Hawai‘i Establishment Clause Precludes the State
From Enforcing the Deed Restriction
When the Hawai‘i Constitution was framed and
subsequently went into effect, three U.S. Supreme Court cases
delineated the law under Federal Establishment Clause
jurisprudence: Everson v. Board of Educ. of Ewing. Township, 330
U.S. 1 (1947); McCollum v. Board of Educ., 333 U.S. 203 (1948);
and Zorach v. Clauson, 343 U.S. 306 (1952).18 We conclude that
these decisions provide appropriate and ample guidance to decide
this case.19 We introduce each case, in turn, before analyzing
the Deed Restriction under the Hawai‘i Establishment Clause.
In 1947, three years before the 1950 Constitutional
Convention in Hawai‘i, the U.S. Supreme Court issued its landmark
Federal Establishment Clause decision in Everson, 330 U.S. 1.
Everson is considered a seminal case which “set the course of
Establishment Clause decisions for two generations.” John C.
Jeffries, Jr. & James E. Ryan, A Political History of the
Establishment Clause, 100 Mich. L. Rev. 279, 284-87 (2001); see
also Daniel O. Conkle, Toward a General Theory of the
Establishment Clause, 82 Nw. U. L. Rev. 1113, 1124-25 (1988).
18 Although the Federal Establishment Clause was adopted as part of
the Bill of Rights in the U.S. Constitution in 1791, there were only a few
cases dealing with the clause prior to the 1940s – none of which are germane
to the issues presently before this court.
19 Although we focus on these cases to resolve the issues presented
in this case, we are not limited to considering only these cases in future
challenges under the Hawai‘i Establishment Clause.
47
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
In Everson, the U.S. Supreme Court articulated
fundamental principles of the Federal Establishment Clause:
The ‘establishment of religion’ clause of the First
Amendment means at least this: Neither a state nor the
Federal Government can set up a church. Neither can pass
laws which aid one religion, aid all religions, or prefer
one religion over another. Neither can force nor influence
a person to go to or to remain away from church against his
will or force him to profess a belief or disbelief in any
religion. No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for church
attendance or non-attendance. No tax in any amount, large
or small, can be levied to support any religious activities
or institutions, whatever they may be called, or whatever
form they may adopt to teach or practice religion. Neither
a state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations
or groups and vice versa. In the words of Jefferson, the
clause against establishment of religion by law was
intended to erect ‘a wall of separation between Church and
State.’
330 U.S. at 15-16 (citation omitted). The Supreme Court held
that a state statute authorizing school districts to pay for
transportation of parochial school students, as part of a
general program to pay fares for students attending public and
other schools, did not violate the Federal Establishment Clause.
Id. at 17. The Court explained:
It is undoubtedly true that children are helped to get to
church schools. There is even a possibility that some of
the children might not be sent to the church schools if the
parents were compelled to pay their children’s bus fares
out of their own pockets when transportation to a public
school would have been paid for by the State. The same
possibility exists where the state requires a local transit
company to provide reduced fares to school children
including those attending parochial schools, or where a
municipally owned transportation system undertakes to carry
all school children free of charge. Moreover, state-paid
policemen, detailed to protect children going to and from
church schools from the very real hazards of traffic, would
serve much the same purpose and accomplish much the same
result as state provisions intended to guarantee free
transportation of a kind which the state deems to be best
48
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
for the school children’s welfare. And parents might
refuse to risk their children to the serious danger of
traffic accidents going to and from parochial schools, the
approaches to which were not protected by policemen.
Similarly, parents might be reluctant to permit their
children to attend schools which the state had cut off from
such general government services as ordinary police and
fire protection, connections for sewage disposal,
public highways and sidewalks. Of course, cutting off
church schools from these services, so separate and so
indisputably marked off from the religious function, would
make it far more difficult for the schools to operate. But
such is obviously not the purpose of the First Amendment.
That Amendment requires the state to be a neutral in its
relations with groups of religious believers and non-
believers; it does not require the state to be their
adversary. State power is no more to be used so as to
handicap religions, than it is to favor them.
Id. at 17-18 (emphasis added) (footnote omitted).
A year later, in McCollum, 333 U.S. 203, the U.S.
Supreme Court struck down a public school program in Champaign,
Illinois, that allowed religious instructors to enter public
school classrooms during regular school hours to provide thirty-
minutes of religious teaching to students whose parents
consented to their participation in the program. Id. at 205-06.
There was no state statute that expressly authorized this
program. See id. at 206. Rather, the subject program was
permitted by the Champaign Board of Education, which under
Illinois statutes had general supervisory powers over the use of
public school buildings in the Champaign school district. Id.
at 205. Under the program, students choosing to attend
religious instruction were released from secular study, while
students choosing not to attend were required to go to another
class for secular studies. Id. at 209.
49
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
In concluding that the school program ran afoul of the
Federal Establishment Clause, the U.S. Supreme Court explained:
The foregoing facts . . . show the use of tax-supported
property for religious instruction and the close
cooperation between the school authorities and the
religious council in promoting religious education. The
operation of the state’s compulsory education system thus
assists and is integrated with the program of religious
instruction carried on by separate religious sects. Pupils
compelled by law to go to school for secular education are
released in part from their legal duty upon the condition
that they attend the religious classes. This is beyond all
question a utilization of the tax-established and tax-
supported public school system to aid religious groups to
spread their faith. And it falls squarely under the ban of
the First Amendment (made applicable to the States by the
Fourteenth) as we interpreted it in [Everson][.]
. . . .
[T]he First Amendment rests upon the premise that both
religion and government can best work to achieve their
lofty aims if each is left free from the other within its
respective sphere. Or, as we said in the [Everson] case,
the First Amendment had erected a wall between Church and
State which must be kept high and impregnable.
Here not only are the state’s [tax-supported] public school
buildings used for the dissemination of religious
doctrines. The State also affords sectarian groups an
invaluable aid in that it helps to provide pupils for their
religious classes through use of the state’s compulsory
public school machinery. This is not separation of Church
and State.
Id. at 209-10, 212.
Of note in McCollum, the Champaign Board of Education
sought to dismiss the appeal by asserting that the Illinois
Supreme Court’s decision, from which the appeal was taken, did
not raise a question about the validity of a state statute for
jurisdictional purposes. Id. at 206. However, the U.S. Supreme
Court held:
This contention rests on the admitted fact that the
challenged program of religious instruction was not
50
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
expressly authorized by statute. But the State Supreme
Court has sustained the validity of the program on the
ground that the Illinois statutes granted the board
authority to establish such a program. This holding is
sufficient to show that the validity of an Illinois statute
was drawn in question within the meaning of 28 U.S.C. s
344(a), 28 U.S.C.A. s 344(a).
Id. (emphases added).
In 1952, the U.S. Supreme Court decided Zorach, 343
U.S. 306. There, the Court upheld a New York City program which
allowed public schools, upon written request from parents, to
release students during the school day from school grounds to
attend religious instruction or devotional exercises elsewhere.
Id. at 308. The Court ruled that the program did not violate
the Federal Establishment Clause, reasoning that, unlike
McCollum, the program did not involve religious instruction in
public school classrooms, the expenditure of public funds, nor
coercion by school authorities. Id. at 308-09, 311. The Court
further explained:
Government may not finance religious groups nor undertake
religious instruction nor blend secular and sectarian
education nor use secular institutions to force one or some
religion on any person. But we find no constitutional
requirement which makes it necessary for government to be
hostile to religion and to throw its weight against efforts
to widen the effective scope of religious influence. The
government must be neutral when it comes to competition
between sects. It may not thrust any sect on any person.
It may not make a religious observance compulsory. It may
not coerce anyone to attend church, to observe a religious
holiday, or to take religious instruction. But it can
close its doors or suspend its operations as to those who
want to repair to their religious sanctuary for worship or
instruction. No more than that is undertaken here.
. . . .
In the McCollum case the classrooms were used for religious
instruction and the force of the public school was used to
51
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
promote that instruction. Here, as we have said, the
public schools do no more than accommodate their schedules
to a program of outside religious instruction. We follow
the McCollum case. But we cannot expand it to cover the
present released time program unless separation of Church
and State means that public institutions can make no
adjustments of their schedules to accommodate the religious
needs of the people. We cannot read into the Bill of
Rights such a philosophy of hostility to religion.
Id. at 314-15 (emphases added) (footnote omitted).
With the above guiding principles in mind, we assess
the constitutionality of enforcing the Deed Restriction under
the Hawai‘i Establishment Clause. We first consider the state
action in this case covered by the Hawai‘i Establishment Clause,
adopted in 1959, thirty-seven years after the subject Land
Patent was issued. The State, through the Department of Land
and Natural Resources (DLNR), asserts its rights under the Deed
Restriction. The State has admitted to paragraphs 5 and 9 in
the Second Amended Complaint, which state:
5. The State has refused to remove the Church
purposes restriction and reversionary interest from the
properties and continues to claim that the clause is
enforceable and the properties should revert to the State
if the restriction is not satisfied.
. . . .
9. State is the State of Hawaii as successor to
the Territory of Hawaii and purports to hold a reversionary
interest in at least a portion of the Property.
HRS § 171-3 (2011) establishes DLNR’s broad authority, and
states in relevant part: “The department shall manage,
administer, and exercise control over public lands, . . . and
all other interests therein and exercise such powers of
52
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
disposition thereof as may be authorized by law.” Given its
admissions, the State through DLNR seeks to enforce the church-
purposes Deed Restriction, and its power to seek such
enforcement flows from its broad statutory authority.
These circumstances are similar to McCollum in that
there is no statute expressly authorizing the challenged action
in this case, but the action was undertaken under broad
statutory authority. In McCollum, Illinois statutes gave
district boards of education general supervisory powers over
public school buildings, and the Champaign Board of Education
used this power to allow religious groups to conduct religious
teaching in public school buildings. 333 U.S. at 205. In
addressing its jurisdiction in the case, the U.S. Supreme Court
stated that the Illinois Supreme Court had “sustained the
validity of the program on the ground that the Illinois statutes
granted the board authority to establish such a program. This
holding is sufficient to show that the validity of an Illinois
statute was drawn in question within the meaning of 28 U.S.C. s
344(a), 28 U.S.C.A. s 344(a).” Id. at 206. Although addressed
in the context of its jurisdiction, the Court in McCollum
recognized that state action under broad statutory powers will
trigger Establishment Clause scrutiny, as it held that the
school program in that case violated the Federal Establishment
Clause. Id. at 209-12. Similarly, we conclude that the State’s
53
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
actions seeking to enforce the church-purposes Deed Restriction
in this case implicates scrutiny under the Hawai‘i Establishment
Clause.
Turning to the question of whether the State’s action
to enforce the Deed Restriction violates the Hawai‘i
Establishment Clause, we conclude that it does. Everson is most
instructive, delineating important standards under which to
assess whether Establishment Clause principles are violated,
including that:
Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, aid
all religions, or prefer one religion over another. . . .
Neither a state nor the Federal Government can, openly or
secretly, participate in the affairs of any religious
organizations or groups and vice versa. In the words of
Jefferson, the clause against establishment of religion by
law was intended to erect ‘a wall of separation between
Church and State.’
330 U.S. at 15-16 (citation omitted).
Everson further declared that Establishment Clause
principles “require[] the state to be a neutral in its relations
with groups of religious believers and non-believers; it does
not require the state to be their adversary. State power is no
more to be used so as to handicap religions, than it is to favor
them.” Id. at 18 (emphasis added.)
Here, the State’s action of enforcing the Deed
Restriction runs afoul of the tenets expressed in Everson. The
Deed Restriction requires that the Property be used “for Church
54
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
purposes only” or else the Property reverts to the State. By
seeking to enforce this provision the State brings to bear its
powers to ensure that the Property continues being used for
“Church purposes.” This constitutes direct state aid in support
of religion.
Like the coercion and entanglement concerns expressed
in the context of public education in Everson and McCollum, the
Deed Restriction in this case also requires the State to assess
and determine whether Appellants are using the Property “for
Church purposes only.” See Everson, 220 U.S. at 16 (“Neither a
state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations or
groups and vice versa.”); McCollum, 333 U.S. at 216-17
(discussing the history and import of the separation of public
education from “Church entanglements” to, among other things,
protect “religion from censorship and coercion however subtly
exercised”). The “church-purposes” Deed Restriction and the
State’s enforcement of it, places the State in the role of
actively policing what constitutes a “Church purpose.” Such a
role is fraught with innumerable ways that the State would be
thrust into the business of religion and religious institutions.
“Church” is commonly defined as “a building for public and
especially Christian worship.” Church, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/church
55
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
[https://perma.cc/5LS4-VAL3]. Clearly, the State cannot enforce
the Deed Restriction only in favor of Christian worship. See
Everson, 330 U.S. at 511 (“Neither a state nor the Federal
Government can . . . pass laws which aid one religion, aid all
religions, or prefer one religion over another.”). Even with a
broader notion of “church” and given the breadth of worship,
faith, and beliefs among different people, the State’s
enforcement of the Deed Restriction requires it to assess and
make judgment calls as to what a “church purpose” entails.
Rather than a wall of separation between church and state, this
is the opposite and causes an entanglement between church and
state. We conclude that the State’s involvement in determining
what constitutes “Church purposes” under the Deed Restriction in
this case violates the Hawai‘i Establishment Clause.
Moreover, enforcement of the Deed Restriction is not a
neutral act as between religion and non-religion. Rather, the
Deed Restriction explicitly favors religion, requiring any
owners of the Property to continue using it only for “Church
purposes” or they will lose the Property. Hence, the State’s
authority is directly utilized to support religion. See Zorach,
343 U.S. at 315 (noting that in McCollum, public school
“classrooms were used for religious instruction and the force of
the public school was used to promote that instruction”
(emphasis added)).
56
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Based on the foregoing, we hold that the Hawai‘i
Establishment Clause precludes the State from enforcing the Deed
Restriction.
3. We Decline to Adopt the Tests Asserted by the Parties
Appellants assert that the test articulated by the
U.S. Supreme Court in Lemon, 403 U.S. 602, is the appropriate
test for deciding constitutional infirmity under the Hawai‘i
Establishment Clause. The State, on the other hand, argues that
the Lemon test has been abandoned by the U.S. Supreme Court and
asserts that we should adopt the now-prevailing test for Federal
Establishment Clause challenges in Kennedy, 597 U.S. 507. We
decline to adopt either the Lemon or the Kennedy tests.
In Lemon, the U.S. Supreme Court stated:
In the absence of precisely stated constitutional
prohibitions, we must draw lines with reference to the
three main evils against which the Establishment Clause was
intended to afford protection: ‘sponsorship, financial
support, and active involvement of the sovereign in
religious activity.’ [Walz v. Tax Comm’n, 397 U.S. 664,
668 (1970)].
Every analysis in this area must begin with consideration
of the cumulative criteria developed by the Court over many
years. Three such tests may be gleaned from our cases.
First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that
neither advances nor inhibits religion, [Board of Educ. v.
Allen, 392 U.S. 236, 243 (1968)]; finally, the statute must
not foster ‘an excessive government entanglement with
religion.’ [Walz, 397 U.S. at 674].
57
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
403 U.S. at 612-13 (emphases added).20 Appellants assert that
the Lemon test should apply for purposes of the Hawai‘i
Establishment Clause because it was discussed in the Hawai‘i
Constitutional Convention Studies of 1978.
The LRB drafted the 1978 Studies as a guidance
document to the delegates of the 1978 Constitutional Convention.
The 1978 Studies “were undertaken at the direction of the
legislature and are an attempt to present in understandable form
many of the possible issues and the arguments on both sides of
such issues that the delegates to the Constitutional Convention
of 1978 may wish to consider.” Hawai‘i Constitutional Convention
Studies 1978: Introduction and Article Summaries, at 1 (1978).
Appellants contend that the 1978 Studies, as well as
Standing Committee Report No. 39 of the 1978 Constitutional
Convention (related to a different section of the Hawai‘i
Constitution),21 demonstrate that “the delegates to the 1978
20 Although we do not adopt the test articulated in Lemon, we
recognize some of its principles stem from and are consistent with Everson,
McCollum and Zorach.
21 Standing Committee Report No. 39, inter alia, discussed article
X, section I of the Hawai‘i Constitution (then article XI, section I), a
constitutional provision that, according to the report, “prohibits the use of
public funds for the support or benefit of any sectarian or private
educational institution.” See Stand. Comm. Rep. No. 39 in 1 Proceedings of
the Constitutional Convention of Hawai‘i of 1978, at 587-88 (1980). The
Standing Committee Report included the following excerpted sentence: “The
application of the federal constitution’s prohibition against entanglement of
the church and state to the issue was also discussed.” Id. at 588. While
the Standing Committee Report did not directly mention Lemon, Appellants
maintain that the report, and the excerpted sentence in particular,
“illustrate[] that fears of entanglement, in violation of [Lemon], materially
58
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Constitutional Convention understood [Lemon] to be the
controlling test for [Hawai‘i’s] [E]stablishment [C]lause.”
Appellants argue that “by declining to substantively amend the
[Hawai‘i Establishment Clause], the delegates approved [Lemon] as
the applicable test in 1978.”
None of Appellants’ arguments for adopting the Lemon
test are convincing. There is no indication that the 1978
convention delegates approved the Lemon test or impliedly
endorsed it. The 1978 Studies are guidance documents and are
not reflective of the discussions or ideas of the 1978
convention delegates themselves. The 1978 Studies preceded the
1978 Constitutional Convention, and the LRB which created the
1978 Studies is a legislative service agency. Further, the
substance of the Hawai‘i Establishment Clause was not amended in
1978, nor is there any indication that the convention delegates
contemplated Lemon in any debates or proceedings during the 1978
convention. Simply because the 1978 Studies were available does
not mean they were relied upon by the delegates. There being no
substantive action by the 1978 convention delegates regarding
the Hawai‘i Establishment Clause, and there being no indication
that the delegates actually considered or debated the 1978
Studies, we conclude that the delegates did not approve or
influenced the delegates’ determination of allowable interaction with
religion.”
59
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
endorse the contents of that study such that we should adopt the
Lemon test.
Next, we address the State’s argument that we should
adopt the “historical practices and understandings” test adopted
by the U.S. Supreme Court in Kennedy in 2022. In Kennedy, the
U.S. Supreme Court held that a high school football coach had
been improperly suspended for kneeling midfield after games to
offer a “quiet prayer” during a period when school employees
were free to attend to personal matters.22 597 U.S. at 512-14.
Regarding the proper analysis under the Federal Establishment
Clause, Kennedy states that the U.S. Supreme Court “long ago
abandoned Lemon and its endorsement test offshoot.” 597 U.S. at
534. Instead, Kennedy instructs that “the Establishment Clause
must be interpreted by reference to historical practices and
understandings.” 597 U.S. at 535 (emphasis added) (internal
quotation marks omitted) (citing Town of Greece v. Galloway, 572
U.S. 565, 576 (2014)). The Kennedy decision provides little
direct guidance, but drew on past U.S. Supreme Court
22 The dissent in Kennedy strongly disagreed with the majority’s
assessment of the record, stating that the coach’s practice evolved over time
to where a majority of the football team joined him and the coach would
deliver speeches with overtly religious references. 597 U.S. at 546, 549
(Sotomayor, J., dissenting).
60
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Establishment Clause cases where the Court utilized a history-
focused approach,23 in order to emphasize that:
The line that courts and governments must draw between the
permissible and the impermissible has to accord with
history and faithfully reflect the understanding of the
Founding Fathers. An analysis focused on original meaning
and history, this Court has stressed, has long represented
the rule rather than some 'exception' within the Court’s
Establishment Clause jurisprudence.
Id. at 535-36 (emphasis added) (citations, brackets, and
quotation marks omitted).
Here, the State argues that this court likewise should
reject Lemon and adopt Kennedy for purposes of interpreting the
Hawai‘i Establishment Clause. Citing Koolau Baptist Church, 68
Haw. 410, 718 P.2d 267, the State asserts that this court has
interpreted the Hawai‘i Establishment Clause “co-extensively with
the First Amendment of the United States Constitution.” The
State mistakenly relies on Koolau Baptist Church because that
case only addressed the Federal Establishment Clause, not the
Hawai‘i Establishment Clause. See id. at 412, 419-21, 718 P.2d
at 268, 273-75.
23 In articulating its new historical practices and understandings
test, the Kennedy majority cited to a group of pre-Lemon cases where the
Court dealt with Establishment Clause challenges in historical terms, and
appeared to suggest that the approach in those cases should inform
Establishment Clause analyses going forward under Kennedy. See Kennedy, 597
U.S. 507, 535-36 (citing Town of Greece, 572 U.S. at 575-77 (analyzing the
federal historical practice of legislative prayer)); American Legion v.
American Humanist Ass’n, 588 U.S. 29, 58-60 (2019) (analyzing the history of
religious monuments); Torcaso v. Watkins, 367 U.S. 488, 490-91 (1961)
(analyzing the history of religious oaths); McGowan v. Maryland, 366 U.S.
420, 431-40 (1961) (analyzing the history of Sunday closing laws); Walz, 397
U.S. at 668-80 (analyzing the “history and uninterrupted practice” of tax
exemptions for churches).
61
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
We also note Justice Sotomayor’s dissent in Kennedy
criticizing the majority’s opinion for its lack of pointed
guidance, and its emphasis on the application of “history and
tradition” to resolve challenges under the Federal Establishment
Clause:
[T]he Court rejects longstanding concerns surrounding
government endorsement of religion and replaces the
standard for reviewing such questions with a new “history
and tradition” test. . . . This decision does a disservice
. . . to our Nation’s longstanding commitment to the
separation of church and state. . . .
. . . .
The Court reserves any meaningful explanation of its
history-and-tradition test for another day, content for now
to disguise it as established law and move on. It should
not escape notice, however, that the effects of the
majority’s new rule could be profound. The problems with
elevating history and tradition over purpose and precedent
are well documented. [See Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215, 374-75 (2022) (Breyer, Sotomayor, and
Kagan, JJ., dissenting)] (explaining that “the Framers
defined rights in general terms, to permit future evolution
in their scope and meaning”); [New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 103-112 (2022)
(Breyer, J., dissenting)] (explaining the pitfalls of a
“near-exclusive reliance on history” and offering examples
of when this Court has “misread” history in the past);
[Brown v. Davenport, 596 U.S. 118, 152-53 (2022) (Kagan,
J., dissenting)] (noting the inaccuracies risked when
courts “play amateur historian”).
Kennedy, 597 U.S. at 546-47, 573 (Sotomayor, J., dissenting).
In this same vein, other U.S. Supreme Court justices
have admonished tests that require judges to play the role of
“amateur historian” in attempting to resolve legal disputes.
See, e.g., Brown, 596 U.S. at 149, 152 (Kagan, J., dissenting)
(noting “the peril of looking at history through a 21st-century
62
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
lens” and the inaccuracies risked when courts “play amateur
historian”).24
Further, this court has not shied away from critiquing
and illuminating the risks inherent in requiring judges to adopt
independent historical research roles. See Wilson, 154 Hawai‘i
at 21-22, 543 P.3d at 453-54 (critiquing the U.S. Supreme Court
for misusing history to flip its long-held understandings and
interpretations of critical issues including gun control and
women’s reproductive rights).
We see no reason to adopt the Kennedy test to analyze
the Hawai‘i Establishment Clause. We recognize the well-founded
concerns raised by Justice Sotomayor’s dissent in Kennedy,
highlighting the challenges of unearthing and applying
historical practices and understandings from the period around
the U.S. Constitution’s adoption in 1787. Further, Appellants
make the salient point that applying the Kennedy test in the
context of state actions in Hawai‘i is even more fraught with
questions and peril. It would be discordant to require that the
Hawai‘i Establishment Clause be construed based on the historical
24 Appellants’ opening brief also points to a law review article
supporting their contention that the Kennedy historical practices and
understandings test “fatally presumes that all historical governmental acts
are consistent with constitutional requirements” despite history indicating
that “government often engages in unconstitutional activities.” See Alex J.
Luchenitser & Sarah R. Goetz, A Hollow History Test: Why Establishment Clause
Cases Should Not Be Decided Through Comparisons with Historical Practices, 68
Cath. U. L. Rev. 653, 666-70 (2019) (noting various historical state and
federal government acts that were subsequently deemed unconstitutional).
63
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
practices and understandings of the Founding Fathers given that
the Hawai‘i Constitution was adopted by its electorate in 1959,
one-hundred and seventy-two years after the U.S. Constitution
was adopted.
Further, in the context of this case, the practice in
question is the grant of property with a church-purposes deed
restriction in 1922, when Hawai‘i was a territory and decades
before the Hawai‘i Constitution was framed or adopted. The
State’s position in this case, in part, is that the Deed
Restriction here passes muster because under a Kennedy analysis,
it is part of our State’s historical practices as an early form
of land use regulation. We reject that notion because the
record in this case, discussed above, does not support the
State’s contention that church-purposes deed restrictions were
part of an early form of use-zoning in the Territory of Hawai‘i.
Further, there is nothing in the record to indicate that the
framers of the Hawai‘i Constitution or the electorate considered
such state actions as consistent with the Hawai‘i Establishment
Clause adopted in 1959.
E. Federal Establishment Clause
In light of our holding under the Hawai‘i Establishment
Clause that the State is precluded from enforcing the Deed
Restriction, the questions under the Federal Establishment
64
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Clause need not be addressed. See Wilson, 154 Hawai‘i at 13, 543
P.3d at 445.
The Circuit Court held that the Deed Restriction did
not violate the Federal Establishment Clause. Because we rule
based on state constitutional grounds and the Federal
Establishment Clause need not be reached in this case, we vacate
that ruling. See Michigan v. Long, 463 U.S. 1032, 1040-42
(1983).
V. CONCLUSION
Based on the Hawai‘i Establishment Clause, we reverse
the Circuit Court’s summary judgment ruling for the State, and
hold that summary judgment is warranted for Appellants Hilo Bay
and Keaukaha Ministry. The State is precluded from enforcing
the Deed Restriction by the Hawai‘i Establishment Clause. The
Circuit Court’s ruling under the Federal Establishment Clause is
vacated.
Kenneth R. Kupchak /s/ Mark E. Recktenwald
Clint K. Hamada
for plaintiffs-appellants /s/ Sabrina S. McKenna
Julie H. China /s/ Todd W. Eddins
Miranda C. Steed
Deputy Attorneys General /s/ Lisa M. Ginoza
for defendants-appellees
/s/ Vladimir P. Devens
65
Case-law data current through December 31, 2025. Source: CourtListener bulk data.