In 2017 Rabbi Levi Gerlitzky and his wife, Fraida, moved to Hawaii to spread Chabad, a movement within the Orthodox Jewish faith. Being as the area largely underserved the needs of the Jewish community, Rabbi Gerlitzky's intent was to increase the resources available to his followers on the Big Island, particularly by founding the Chabad Jewish Center of the Big Island. While the center serves as a meaningful venue where followers can gather and pray, it's use is limited, as the location is inaccessible to a number of the Jewish Orthodox community's followers on the Sabbath, when according to Jewish law, the use of automobiles is prohibited. Additionally, as part of the Chabad faith, "Rabbis often own houses in which they live and invite Jewish community members to properly engage in Jewish traditions in conformity with Jewish law". As such, Rabbi Levi Gerlitzky generously opened his home to followers of the Jewish faith, so that community members could have access to a kosher kitchen and sacred prayer space. During these events, between fifteen and twenty individuals would attend the home of Rabbi Gerlitzky, yet the guests were careful to be quiet upon entry and exit of the Gerlitzky residence.
Between 2017 and early 2023, Jewish community members on the Big Island would frequent Rabbi Gerlitzky's home, without objection from the state. However, in February of 2023 Zendo Kern of the Planning Department for Hawaii's Big Island contacted Rabbi Gerlitzky, serving him with a cease and desist from holding religious events inside his private residence.
According to the Planning Department, Rabbi Gerlitzky is in violation of Hawaii's zoning laws, as his operation of a worship space within his single-family home is not allowed without a registered permit. According to section 25-2-61 of Hawaii's zoning code, "Churches, temples and synagogues, including meeting facilities for churches,
temples, synagogues and other such institutions" are allowed in residential zones, "provided that a minimum building site area of ten thousand square
feet is required". Being as the Gerlitzky residence is on less than an acre, the residence does not meet the size requirements necessary to obtain a permit. Non-secular meeting facilities, on the other hand, are not required to submit a permit to Hawaii's housing department under section 25-5-3 and are rather permitted to operate without question. As such, the Gerlitzky family argues that Hawaii's laws are not neutral, as they place additional burden on religious organizations.
On Feburary 13, 2024 Rabbi Gerlitzky contacted the First Liberty Institute with the intent to sue the Big Island's Planning Department on the Grounds of a free exercise breach. Rabbi Gerlitzky sees the state's preference to secular household operations as constituting "a facial violation of the First Amendment’s free-exercise clause". Rabbi Gerlitzky's attorney expanded upon this concern, stating that "Rabbi Gerlitzky has a constitutional right to engage in religious activities in his home...". His attorney furthers this by arguing that “By levying fines on religious gatherings while allowing similar secular in-home gatherings like Super Bowl parties and book clubs to continue without penalty, the County violates both the U.S. Constitution and federal law.”
As such, the following question must be raised: Did the Hawaii Planning Department violate Rabbi Gerlitzky's free exercise and First Amendment rights by forcing him to cease his household religious practices until he could obtain a permit?
As the Lemon test dictates, any instance that excessively entangles the government and religious interests is impermissible, and the actions within a private household are arguably not worthy of government surveillance. Furthermore, there are a number of cases that prove relevant in evaluating if the state of Hawaii is breaching individual's First Amendment privileges. The case of Church of Lukumi Babalu Aye, Inc. v. City of Hialeah saw an Afro-Carribean faith group sue the city of Hialeah, Florida for adopting an ordinance that prohibited animal sacrifices, despite the group sacrificing animals in their religious practices. In an unanimous decision, the Supreme Court ruled in favor of the Church of Lukumi Babalu Aye, arguing that the law was not neutral, and there was no compelling state interest in the prohibition of animal sacrifices for religious reasons. This case is relevant because the Supreme Court acknowledged that a city ordinance was not neutral in its intent to restrict sacrifices to oust a religious group. Furthermore, the case of Ritesh Tandon v. Gavin Newsom, Govenor of California, decided in 2021, saw the Supreme Court rule that the state of California could not restrict religious gatherings in households as a result of the COVID-19 pandemic. These cases highlight that the court is keenly aware of the dangers of infringing upon people's religious practices as it relates to the household, an inherently private space.
In analyzing precedent and the facts of Rabbi Gerlitzky's predicament, I believe Hawaii's zoning laws to be facially neutral but exclusionary in practice. Hawaii's permit requirement for religious organizations to form in residential zones is unjust, particularly considering the square-footage requirements. Additionally, the Big Island permits gatherings of non-secular purposes to occur without a permit. Therefore, by enabling non-secular events to occur with ease, and imposing a burden on religious groups, Rabbi Gerlitzky's free exercise rights are being infringed upon. Additionally, due to the religious restrictions associated with being an Orthodox Jew, particularly on the Sabbath, prohibiting the Gerlitzky household from hosting religious events poses a significant burden on the Jewish community. As such, I believe that the courts should require Hawaii to change their zoning policies to foster a sense of equality between secular and non-secular groups.
https://firstliberty.org/cases/rabbi-levi-gerlitzky/
https://firstliberty.org/wp-content/uploads/2024/02/Gerlitzky_Complaint_Redacted.pdf
https://www.oyez.org/cases/1992/91-948
https://www.hawaiicounty.gov/home/showpublisheddocument/302520/638270170859870000
https://www.christianpost.com/news/rabbi-sues-county-for-denying-him-permit-to-host-services-at-home.html
I agree with your argument and ruling that Rabbi Gerlitzky’s Free Exercise Clause was violated due to Hawaii's zoning law. Your use of previous case precedents help strengthen the argument that Rabbi Gerlitzky’s rights were violated. Especially the case of Ritesh Tandon v. Gavin Newsom which involved the allowing of religious practices during the Covid 19 pandemic. Since Hawaii only has square foot restrictions for churches, temples, synagogues and meeting places for religious purposes I believe that this is why it is unconstitutional. Although the law is applied equally to all different religions, it is still not neutral. This is because the state is benefiting non-religion over religious institutions. If this law was put in place for both religious and non religious then I do not believe it would be unconstitutional. If they had the requirement for all spaces then there would be a compelling state interest to ensure safety among the citizens but since they do not it is unconstitutional.
ReplyDeleteHi Kim! Very engaging and overall impressive analysis of the constitutional breach in this case. I think you are spot on with your conclusion as I share a similar opinion. This case in particular is a perfect example of what we discussed as a class in the previous weeks about maintaining equality between non-secular and religious organizations and the resources available to them. As you pointed out, the state allows for non-secular groups to meet regardless of any perceived violations of ordinances. The ordinance seems to only apply to secular groups in practice, therefore making the policy not neutral in effect. The state allows for religious groups to meet in buildings that are 10,000ft or more. It is quite possible that these smaller religious groups are unable to purchase such a facility, therefore requiring the use of a personal home to worship. Larger religious sects on the island may be able to afford such a facility. By placing this burden onto minority sects, it is disproportionately affecting their ability to worship. It is therefore a breach of the free exercise clause. The lack of neutrality is the central issue at play here making it unconstitutional.
ReplyDeleteHi Kim,
ReplyDeleteThis is a great post! I agree with you that this policy violates Rabbi Gerlitzky’s free exercise rights. I’m not sure though that this law is facially neutral as it clearly favors secular organizations over religious ones, which is unconstitutional. What occurs on private property should not be of government interest and Rabbi Gerlitzky should be able to freely practice his religion however he sees fit in his own home. Also, I agree that this policy may indirectly burden minority religions who do not have access to large enough spaces for worship. This policy disfavorably impacts religions, particularly minority religions, and does not meet the neutrality principle set in the Establishment Clause.