In Hilo Bay Marina, LLC v. State of Hawai'i, (HI Sup. Ct., Sept. 12, 2025), the Hawaii Supreme Court held that the Hawaii state constitution's Establishment Clause invalidates a provision in a 1922 land grant from the Territory of Hawaii to the Church of Jesus Christ of Latter-Day Saints. The land grant provided in part:
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.
The current owners of the land seek a declaratory judgment holding that the reversionary clause is invalid. The majority said in part:
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....
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). We conclude that these decisions provide appropriate and ample guidance to decide this case....
... The State ... 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. ...
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 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. ...
Justice Eddins, joined by Justices McKenna and Devis filed a concurring opinion, saying in part:
Because in my view article I section 4 of the Hawaiʻi Constitution has a pluralistic purpose and secular spirit grander than the majority suggests, and the Department of the Attorney General urges us to interpret our constitution to match recent Supreme Court case law, I write separately....
The delegates intended for Hawaiʻi’s Establishment Clause to reflect Everson’s separationist ideals.... Separation of church and state guided the adoption of Hawaiʻi’s religious clauses....
If the Supreme Court decides a case based on mission, text trickery, originalism, or imagination, then that case may have little value to a state that prefers a more principled way, or an interpretive approach that does not force “contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution.”...
The Roberts Court’s off-the-wall jurisprudence reimagines the First Amendment. The Constitution creates a barrier against state support for religion and state involvement in religion. But the Court misshapes the Constitution to require government support of religion.
Two years ago, I feared the Court self-inflicted harm, eroded faith in the courts, and exposed itself to real criticisms about its legitimacy....
Back then in the big games, the Roberts Court called balls and strikes based on the pitcher and hitter. Bad enough for the integrity of our judicial system – national and subnational. But now pitches that bounce to the plate or sail over the catcher’s head are strikes. Just because the ump says so. Pretend law is not law. State constitutionalism makes it easy to consider Roberts Court jurisprudence white noise.
