Chabad likely to win bias suit against Hawaii county, top US prosecutor says

"There’s political capital to be made, and political cost to be avoided, by litigating," Marc Stern, of the American Jewish Committee, told JNS. "It’s like Kabuki theater."

by Menachem Wecker, JNS, April 4, 2024

Hawaii County zoning laws discriminate against faith groups, running afoul of the Religious Land Use and Institutionalized Persons Act of 2000, a top U.S. law enforcement officer wrote to the U.S. District Court for the District of Hawaii.

Kristen Clarke, assistant attorney general of the U.S. Justice Department’s Civil Rights Division, added in a “statement of interest” to the court that Rabbi Levi Gerlitzky and the Chabad Jewish Center of the Big Island, who are suing the county, “have established a likelihood of success on the merits.”

Per the 2000 RLUIPA, “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”

The Hawaii county requires religious assemblies to undergo a “long and potentially costly discretionary review process,” including a public hearing before the county planning commission, to receive a permit, while it allows “comparable secular assemblies by right without such a permit,” Clarke wrote. The county provides “no legally permissible justification for this unequal treatment,” she added.

The county planning department notified Chabad on Feb. 1, 2023 that it had “received a complaint alleging that you are use [sic] your property as a church, temple or synagogue without a use permit.” On March 17, 2023, it ordered Chabad to “immediately cease and desist from operating the Chabad Jewish Center Big Island on the subject property” and to pay a $1,000 fine, according to Clarke. Additional fines would run $100 daily, the county department said.

After the Chabad applied for the use permit and paid the fee, the county denied the application, returned the fee and told the rabbi that he had to file “‘more detailed, accurate information,’ and to ‘thoroughly research the permitting requirements to convert your dwelling into the proposed use,’ noting that the ‘use permit is just the first step in permitting such a change of use’ and that plaintiffs may need to ‘upgrad[e] the facility to commercial type standards,’” she wrote.

“The county has assessed thousands of dollars in fines against plaintiffs,” she added.

NIMBY

“Most of these restrictions are today a sort-of ‘NIMBY’ phenomenon,” Marc Stern, chief legal officer at the American Jewish Committee, told JNS, using the acronym for “not in my backyard.”

“There’s no question there’s increased traffic with churches. Parking drives people up a wall if they can’t find right in front of their house. They have to walk three feet, that’s a problem,” he said. “There’s more traffic. There’s noise, and people want to preserve single-family home districts to preserve a residential character.”

 “Most of the time, it’s not about hostility to religion as such,” Stern said. “What makes this type of case a little bit unusual is that other sorts of congregate uses are allowed and religion isn’t. That’s harder to explain, but usually there too it’s not so much about religion as it is the idea that the church as a building, as an institution doesn’t contribute—it’s a drain on tax revenue. You have to provide police and fire protection.”

Houses of worship don’t tend to draw people into town to spend money, like a theater does. “I think it has to do more with that than anything else,” Stern said. “I certainly don’t think for example that Hawaii, that this particular zoning law was written with Chabad in mind.”

Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies who has written extensively on religious liberty, told JNS that the NIMBY perspective has often led to negative treatment of religious institutions throughout zoning history.

“Even churches reflecting the religious views of the majority have been commonly restricted, and when a religion is smaller or unfamiliar to the majority, it can face even more difficulty in the process due to unfamiliarity or lack of local political influence,” he said. “But, again, motivation isn’t the point.”

“Around the country it’s very common for zoning authorities to have to retreat and permit the congregation to meet once lawyers or courts make clear what RLIUPA requires of them,” he said.

Religious congregations can win under RLIUPA without having to demonstrate that anyone harbored negative feelings toward religion broadly, or their particular faith, according to Olson.

“If there was an intent to harm a certain religion, the congregation may have additional important legal rights, but that isn’t the everyday situation,” he said.

“Zoning often proceeds on inertia—some local governments might have inherited a rule on the books from before 2000, for example, and never given it a careful review since,” Olson added. “I don’t know whether that’s the case here.”

‘Kabuki theater’

“Jews are roadkill here,” Stern told JNS, meaning that the laws “are not typically aimed at Jews.” Zoning laws that discriminate against religious institutions is a more general phenomenon, that mostly affects evangelical churches, he said.

“One of the reasons why you see Chabad popping up is because most churches in the United States are contracting at this point. The Catholic Church has more churches than it knows what to do with. If there are 15 Episcopalians in the United States, it’s a lot,” Stern said. (The Episcopal church reported 1,432,082 baptized members in 2022, down nearly 90,000 from 2021 and a nearly 25% decline compared to 2012.)

“They’re not building churches, so you’re not going to find zoning cases with them. Chabad, small evangelicals churches and so on, Hindu temples, those groups are expanding,” Stern told JNS. “They’re moving into neighborhoods where they’ve never been before, and they now have to build.”

“They’re going to run into zoning,” he said.

Olson, of Cato, told JNS that RLIUPA “doesn’t exempt religious congregations from all zoning laws.”

Courts sometimes uphold restrictions that states and municipalities impose, “because traffic, parking and crowds can impose on neighbors,” Olson said. “But these laws must not treat religious assemblies less well than similar kinds of public assembly absent some compelling and carefully tailored reason.”

A local government can create a nightlife district, for example, and allow just certain kinds of entertainment use, “provided it can lay out a good rationale for doing that, announce the rules in advance and then enforce them consistently in line with the special purpose,” he told JNS. “But Hawaii didn’t do any of that here.”

“To me, this looks like a pretty cut and dried RLIUPA case,” he said. “When that happens, the U.S. Department of Justice can and often does intervene, as here, in its role as watchdog for congregations’ rights under the law.”

Stern told JNS that many municipalities resent the federal RLIUPA law, “because it deprives them of discretion in zoning matters, which is a big deal locally. It’s not all that surprising that they’re fighting it even though they’re likely to lose.”

“Not every municipality loses every RLIUPA case, but they lose a high percentage of them,” Stern said. “So either they’re badly informed on the law, which is possible although this is pretty cut and dry here. Or—this happens in lots of areas where you’re suing in a municipality—there’s political capital to be made, and political cost to be avoided, by litigating.”

“‘We didn’t want to do it. We fought it. The damn federal judge made us do it,’” he said. “‘Go talk to the people in Congress who passed this insane law.’ They have evidence that they are not in sympathy with the change in environment, because after all they fought it.”

He noted that there are moral differences but said the posturing is “not all that different” from Alabama Gov. George Wallace standing in the school house door at the University of Alabama on June 11, 1963 to block desegregation of schools.

 “There were hundreds of federalized, national guardsmen standing them. The U.S. Justice Department was there with a court order. There was no way in hell the guy was going to win. So why did he do it?” Stern said. “It’s like Kabuki theater.”

Kristen Clarke, assistant attorney general of the U.S. Justice Department’s Civil Rights Division. Credit: Official Justice Department portrait.

No justification

In her letter to the court, the assistant U.S. attorney general wrote that the Chabad and the rabbi “have established a likelihood of success on the merits for their RLUIPA equal terms claim.”

She noted that the Hawaii county code requires certain kinds of institutions like crematoriums, houses of worship, hospitals and golf courses to obtain “use permits” to operate in certain zoning districts.

“‘Use permits’ are intended to provide the county with the opportunity to pay ‘special attention to insure [sic] that the uses will neither unduly burden public agencies to provide public services nor cause substantial adverse impacts upon the surrounding community,’” she wrote, quoting the county laws.

Applicants have to pay a $500 fee for a permit and to submit “a detailed application to the planning department addressing several objective and subjective factors, including that the ‘proposed use shall not be materially detrimental to the public welfare nor cause substantial, adverse impact to the community’s character [or] to surrounding properties,’” she added.

The county has said “citing no authority” that Chabad lacks standing in the case, she wrote. “Defendants misunderstand the concept of standing and the nature of plaintiffs’ RLUIPA equal terms claim.”

 “There is no dispute that plaintiffs have been injured in fact. The county has ordered plaintiffs to stop engaging in religious exercise and assessed thousands of dollars of fines against them,” she wrote.

“Although not stated as much, defendants appear to be arguing, without
any legal support, that because they did not charge plaintiffs with violating the ‘meeting facility’ portion of section 25-5-3 of the zoning code, plaintiffs cannot assert an equal terms claim based on that portion of the code,” she added. “This is false.”

No part of the county’s zoning code “can justify—or even try to explain—why religious assemblies should be made to obtain a use permit, but similar nonreligious assemblies like meeting facilities are not,” Clarke wrote.