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.

majority opinion

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Electronically Filed

Supreme Court

SCAP-XX-XXXXXXX

12-SEP-2025

08:56 AM

Dkt. 19 OP

IN THE SUPREME COURT OF THE STATE OF HAWAII

---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.

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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.

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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:

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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.

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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.

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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

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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.

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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

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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

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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

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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.

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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.

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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

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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

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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

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[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)).

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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).

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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:

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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)).

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“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.

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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 usezoning. 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.

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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

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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.

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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 twothirds 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).

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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,

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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

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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.

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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.

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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 usezoning,” 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

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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.

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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

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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.

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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.

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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

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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).

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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

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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.merriamwebster.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),

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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.

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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.”

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(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

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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

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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

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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).

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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

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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.

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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.

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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

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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 nonbelievers; 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 thirtyminutes 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.

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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 taxsupported 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

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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

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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

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disposition thereof as may be authorized by law.” Given its

admissions, the State through DLNR seeks to enforce the churchpurposes 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

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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

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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

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[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)).

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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].

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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

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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.”

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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).

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Establishment Clause cases where the Court utilized a historyfocused 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).

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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

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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).

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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

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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

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.

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