HomeMy WebLinkAboutCOM 0313.006 2024-2026COUNTY CLERK
COUNTY OF HAWAV
June 16, 2025 RECE VBD
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Council Member Ashley L. Kierkiewicz, Chair
Council Member Michelle Galimba, Vice Chair
Date JUN 1 6 2025
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Policy Committee on Planning, Land Use, and Economic Development, Hawaii County Council
25 Aupuni Street
Hilo, Hawai'i 96720 _
Re: Bill 60 - an Ordinance Amending Chapter 25, Article 1, Article 2, Article 4, Article
5, and Article 7 of the Hawai'i County Code 1983 (2016 Edition, as amended),
Relating to Zoning District Regulations for Meeting Facilities, Churches, Temples,
Synagogues, and Community Buildings
Testimony in Opposition \
Dear Chair Kierkiewicz, Vice Chair Galimba, and Members of the Committee:
I am Aaron K. Auna, Stake President of the Hilo Hawaii Stake of The Church of Jesus
Christ of Latter-day Saints. I am writing on behalf of The Church of Jesus Christ of Latter-day
Saints to oppose portions of Bill 60 that place unconstitutional limits on places of worship.
Specifically, Bill 60 redefines a meeting facility to include "religious facilities such as
places of worship." It then adds a new Section 25-4-17 to Chapter 25, article 4, division 1 of the
Hawaii County Code ("Proposed Section 25-4-17(d)"), which provides that "The hours of
operation for meeting facilities shall start no earlier than 8:00 am and end no later than 9: 00
pm "
Together, these provisions prohibit churches, temples, synagogues, and other places of
worship from opening their doors before 8:00 a.m. and keeping them open after 9:00 p.m. Perhaps
this was not the intent, but it is the effect of the plain language of these proposed amendments.
This curfew on religious worship plainly violates the First Amendment of the United States
Constitution and Article I, Section 4 of the Hawaii Constitution.
I. Proposed Section 25-4-17(d) violates the Free Exercise Clause.
A. Proposed Section 25-4-17(d) is not neutral and generally applicable.
A law that burdens religious exercise must satisfy "strict scrutiny" if it is not neutral and
generally applicable. See Fulton a City of Phila., 593 U.S. 522, 532 (2021); see also Cervelli u
Aloha Bed & Breakfast, 142 Haw. 177, 192 (2018). And a law is not neutral and generally
applicable if it "treat[s] any comparable secular activity more favorably than religious exercise."
Tandon a Newsom, 593 U.S. 61, 62 (2021)
Comm.
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Proposed Section 25-4-17(d) is not neutral and generally applicable. As just one example,
"meeting facility" is defined to include "religious facilities such as places of worship" but
specifically "does not include schools or events." Under Proposed Section 25-4-17(d), a school
concert can begin before 8 a.m. and extend after 9 p.m., but worshipers cannot gather in a religious
facility to sing hymns before 8 a.m. or after 9 p.m. The proposed legislation also does not apply
its hours restrictions to many other types of secular institutions such as grocery stores, restaurants,
and numerous other businesses and institutions.
That means it is not neutral and generally applicable. Fulton, 593 U.S. at 534. A
government cannot force churches to shut down at 9:00 p.m. while allowing other facilities to
remain open. It is precisely this kind of unequal treatment that triggers what the United States
Supreme Court calls "strict scrutiny" if the law burden religious exercise.
B. Proposed Section 25-4-17(d) burdens essential religious practices.
A law burdens religious exercise when it interferes with or restricts the practice of sincerely
held religious beliefs.' See Kennedy a Bremerton Sch. Dist., 597 U.S. 507, 525 (2022) ("Under
this Court's precedents, a plaintiff may carry the burden of proving a free exercise violation ... by
showing that a government entity has burdened his sincere religious practice pursuant to a policy
that is not `neutral' or `generally applicable."').
Proposed Section 25-4-17(d) limits the hours during which worshippers can gather, and
gathering to worship in a religious facility is the epitome of the exercise of religion. "[T]he
`exercise of religion' often involves not only the belief and profession but the performance of ...
physical acts [such as] assembling with others for a worship service ...." Employment Diu u
Smith, 494 U.S. 872, 877 (1990). This regulation would prohibit midnight mass on Christmas Eve.
Sabbatarians often gather after dark on Fridays to worship. Proposed Section 25-4-17(d) would
prohibit such gatherings. Temples of The Church of Jesus Christ of Latter-day Saints typically
open before 8 a.m. to accommodate worshipers who want to go to the temple before they go to
work or to school. This regulation would prohibit that.
Any attempt to control the hours of religious services plainly burdens religious exercise.
Religious organizations have the right to decide when to worship "free from state interference."
Our Lady of Guadalupe Sch. a Morrissey-Berru, 591 U.S. 732, 736, (2020). A religious
organization's "freedom of worship and assembly ... may not be submitted to [a] vote ...." West
' A substantial burden is not necessary (though this would certainly qualify). Rather, any burden
is sufficient. See Kravitz v. Purcell, 87 FAth 111, 116 (2d Cir. 2023) ("since Smith the Supreme
Court has treated a showing of the plaintiff's sincerity to be sufficient to establish a prima facie
free exercise violation and has not referenced a substantial burden requirement").
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Virginia State Bd. of Ed. a Barnette, 319 U.S. 624, 638 (1943). Proposed Section 25-4-17(d)
should be amended to exempt religious facilities from this unconstitutional curfew.
C. Proposed Section 25-4-17(d) does not serve a compelling government interest and
is not narrowly tailored.
Because Proposed Section 25-4-17 burdens religious exercise and is not neutral and
generally applicable, it violates the First Amendment unless it passes what the United States
Supreme Court calls "strict scrutiny." Church of Lukumi Babalu Aye, Inc. a City of Hialeah, 508
U.S. 520, 546 (1993). To pass this test, it must be justified by a "compelling governmental interest"
and must be "narrowly tailored" to achieve that interest. Kennedy, 597 U.S. at 531-32. The
Supreme Court calls this the "most demanding test known to constitutional law." City of Boerne
u Flores, 521 U.S. 507, 534 (1997).
A compelling interest is an "interest[] of the highest order." Lukumi Babalu Aye, 508 U.S.
at 546. It generally requires some "`substantial threat to public safety, peace, or order." Paul u
Watchtower Bible & Tract Soc'y, 819 F.2d 875, 882 (9th Cir. 1987) (quoting Sherbert a Verner,
374 U.S. 398,403 (1963)). "`[O]nly the gravest abuses, endangering paramount interests"' justify
restrictions on the free exercise of religion. Paul, 819 F.2d at 882 (quoting Sherbert, 374 U.S. at
406)).
Prohibiting religious gatherings before 8 a.m. and after 9 p.m. does not serve a government
interest of the "highest order." Early -morning and late -night events in religious facilities do not
pose a "substantial threat" to public safety, peace, or order. If the interests at stake were that
important, Propose Section 25-4-17(d) would apply more broadly. It would not exempt schools,
for example. "[A] law cannot be regarded as protecting an interest of the highest order when it
leaves appreciable damage to that supposedly vital interest unprohibited." Church of Lukumi
Babalu Aye„ 508 U.S. at 547 (1993) (cleaned up); see also Reed a Town of Gilbert, 576 U.S. 155,
172 (2015) ("In light of this underinclusiveness, the Town has not met its burden to prove that its
Sign Code [which prohibited some signs but not others] is narrowly tailored to further a compelling
government interest.").
Even if Proposed Section 25-4-17(d) did support a compelling interest, it is not narrowly
tailored—i.e., it is not the "least restrictive" method of accomplishing the County's goal. Lukumi
Babalu Aye, 508 U.S. at 546. "[N]arrow tailoring requires the government to show that measures
less restrictive of the First Amendment activity could not address its interest .... Where the
government permits other activities to proceed with precautions, it must show that the religious
exercise at issue is more dangerous than those activities even when the same precautions are
applied. Otherwise, precautions that suffice for other activities suffice for religious exercise too."
Tandon, 593 U.S. at 63. "[S]o long as the government can achieve its interests in a manner that
does not burden religion, it must do so." Fulton, 593 U.S. at 541.
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The Council's interest in enacting the Proposed Section 25-4-17(d), whether it pertains to
public safety, noise control, or other concerns, can be pursued by directly targeting those items. If
the concern is noise, for example, the Council can pass a noise ordinance. A curfew on religious
events is not narrowly tailored to support any government interest, much less a compelling one.
This curfew is not unlike the restrictions on religious gatherings during the COVID-19
pandemic that the United States Supreme Court repeatedly struck down. During the pandemic,
governments at various levels passed laws and ordinances that, for example, restricted the number
of worshipers who could gather, while allowing unlimited gatherings at supposedly "essential"
facilities. These regulations violated the First Amendment, the United States Supreme Court held,
because they treated "comparable secular activities more favorably than ... religious exercise,
permitting hair salons, retail stores, personal care services, movie theaters" and other locations
while restricting religious gatherings. Tandon a Newsom, 593 U.S. 61, 63 (2021). A store deemed
"essential" could "have hundreds of people shopping there," while "a nearby church, or synagogue"
would be restricted. Roman Catholic Diocese a Cuomo, 592 U.S. 14, 17 (2020). Although
preventing the spread of COVID-19 was a compelling government interest, these restrictions were
not "narrowly tailored" because religious gatherings did not "create a more serious health risk than
the many other activities that the State allows." Id. at 18.
Like the COVID-related restrictions on gathering for religious worship, Proposed Section
25-4-17(d) prohibits gathering for religious worship in a religious facility before 8 a.m. and after
9 p.m. while allowing secular gatherings that undoubtedly cause at least as much, if not more, of
whatever harm it is this proposed regulation is trying to prevent.
In sum, this curfew plainly violates the First Amendment. We ask the Council to reject
Proposed Section 25-4-17(d) or to exempt religious facilities and events.
H. Proposed Section 25-4-17(d) also violates the Free Speech Clause.
By prohibiting worship services before 8 a.m. and after 9 p.m., Proposed Section 25-4-
17(d) also regulates speech. "Time, place, and manner" restrictions on speech are permissible
under the First Amendment "`provided `they are justified without reference to the content of the
regulated speech, that they serve a significant governmental interest, and that they leave open
ample alternative channels for communication of the information."' State a Bloss, 64 Haw. 148,
160 (1981) (quoting Virginia Pharmacy Bd. a Virginia Consumer Council, 425 U.S. 748, 771
(1976)).
Proposed Section 25-4-17(d) is not content neutral. To be sure, it does not specifically
target speech "because of disagreement with the message it conveys." Turner Broad. Sys., Inc. u
F.C.C., 512 U.S. 622, 642 (1994) (quotation marks omitted). But by restricting religious gathering
but not school gatherings, for example, the proposed ordinance necessarily imposes a greater
burden on religious speech than on the speech that occurs in schools.
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"Content -based regulations [of speech] are presumptively invalid" under the First
Amendment. R.A. V. a City of St. Paul, 505 U.S. 377, 382 (1992). Such regulations must survive
the same "strict scrutiny" as laws that burden religious exercise. Reed, 576 U.S. at 163-64. For
the reasons already explained, this law does not survive this strict scrutiny.
III. Proposed Section 25-4-17(d) also violates the Religious Land Use and Institutionalized
Persons Act.
The Religious Land Use and Institutionalized Persons Act (RLUIPA) prohibits any land -
use ordinance that imposes a "substantial burden" on religious exercise unless it is supported by a
compelling government interest narrowly pursued. 42 U.S.C. § 2000cc(a).
The "ability to engage in group worship" is protected religious exercise under RLUIPA. In
Greene a Solano County Jail, 513 F.3d 982 (9th Cir. 2007), the Ninth Circuit had "little difficulty"
in concluding that a regulation that limits the ability to engage in group worship "is a substantial
burden on that religious exercise." Id. at 988. See Murphy a Mo. Dept of Corrs., 372 F.3d 979,
988 (8th Cir. 2004) (concluding that a ban on "communal worship" substantially burdened
religious exercise); Meyer a Teslik, 411 F. Supp. 2d 983, 989 (W.D. Wis. 2006) (holding that ban
on group worship substantially burdened inmate's religious exercise).
Under Proposed Section 25-4-17(d), a group of religious believers would be prohibited
from gathering for a meeting before 8 a.m. or after 9 p.m. It does not matter that their religious
beliefs may not compel them to meet at these times. As the U.S. Department of Justice explains,
a municipality "cannot avoid the force of RLUIPA by asserting that a particular religious activity
is something that a religious group merely wants to do rather than something that it must do."2
In St. Timothy's Episcopal Church a City of Brookings, 726 F. Supp. 3d 1231 (D. Or. 2024),
the Diocese challenged a city ordinance that would have restricted the days and times it could offer
meals to the homeless. The city asserted it had a compelling interest in protecting the public
welfare, maintaining peace and order, and preventing crime. The court held that the city failed to
demonstrate how the time restriction would accomplish those interests. Id. at 1245. The city also
could not show that it considered less restrictive measures of accomplishing its goals. 726 F.
Supp.3d at 1246. For those reasons, the ordinance violated RLUIPA.
Likewise, here, the County does not have a compelling interest in placing a curfew on
religious worship services. Such a curfew will not prevent crime, for example, and certainly is not
"narrowly tailored" to accomplish that purpose. We are confident a court would have little
difficulty in concluding that Proposed Section 25-4-17(d) imposes a substantial burden on
religious exercise, does not support a compelling interest, and is not narrowly tailored.
2 Dep't of Justice, Civil Rights Div., Statement of the Department of Justice on the Land -Use Provisions of the
Religious Land Use and Institutionalized Persons Act (RLUIPA) (Sept. 22, 2010)
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RLUIPA also prohibits land -use regulations and decisions that "treat[] a religious assembly
or institution on less than equal terms with a nonreligious assembly or institution." 42 U.S.C. §
2000cc(b)(1). On its face, Proposed Section 25-4-17(d) treats religious facilities worse than
schools and other assemblies. See Centro Familiar Cristiano Buenas Nuevas a City of Yuma, 651
F.3d 1163, 1167 (9th Cir. 2011) (finding a zoning code "subjecting churches but not secular
membership organizations to conditional use permits" in commercial district violated RLUIPXs
equal terms provision where permitted secular membership organizations "would have the same
practical effect as a church"). Thus, Proposed Section 25-4-17(d) also violated RLUIPNs equal -
terms provision.
In sum, whether intentional or not, Proposed Section 25-4-17(d) in conjunction with the
proposed revision to the definition of meeting facility places restrictions on places of worship that
plainly violate the First Amendment. Proposed Section 25-4-17(d) should be rejected by this
committee and the Council or amended to excluded religious facilities from its reach.
Please feel free to contact me if you would like to discuss my comments. Thank you for
your time.
Very Truly Yours,
'444 x x aura
Aaron K. Auna
Stake President of the Hilo Hawaii Stake of The
Church of Jesus Christ of Latter-day Saints
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