Aloha, Chabad

By Rabbi Binyomin Zev Karman

Aloha is the Hawaiian word which is used to convey peace, compassion, mercy and affection, and is commonly used as a greeting. Yet for Rabbi Levi and Fraida Gerlitzsky, its seems more of a salutation for goodbye than a welcoming hello.

The state of Hawaii is an archipelago consisting of 137 volcanic islands, with eight main islands: Niʻihau, Kauaʻi, Oʻahu, Molokaʻi, Lānaʻi, Kahoʻolawe, Maui, and Hawaiʻi, often called the “Big Island.” The Gerlitzskys married in 2015 and moved to the Big Island in 2017, establishing Chabad Jewish Center of the Big Island, a Chabad House, in their home located in the Kailua-Kona section of the Big Island.

The Chabad Jewish Center rents office space in the Kona Chamber of Commerce, an office complex just a short distance from his home, where Rabbi Gerlitzky conducts most of his office work and meetings. Yet these facilities cannot accommodate the many religious activities of the Chabad House, which include Shabbos meals, prayer gatherings, classes and other events.

For several years, Rabbi Gerlitzsky and his wife administered to his guests without any trouble. Some guests arrive on foot, and those who arrive by car park on the side of the road and take care to be courteous and not block any driveways. The meal assemblies consisted mostly of groups of between 15 and twenty people, and classes have generally about ten participants. For the Seder on the nights of Pesach, they had a maximum of 90 guests.

For six years, the Chabad house operated without incident, but in February 2023, the Gerlitzskys received a Notice of Complaint from the Planning Department of Hawaii County indicating that their home was in a district zoned for residential use which allow “[c]hurches, temples and synagogues” to operate only with “a use permit.” The Chabad House began accruing fines of $1000 for the violations and $100 for each day afterwards.

The Gerlitzskys tried to reason with Zendo Kern, the Hawaii County Planning Director, explaining that the gatherings were not an official synagogue but rather a private gathering, which would be allowed for similar secular purposes. In addition, he explained that many of the gatherings, which were for religious meals, could not take place in rented facilities since no commercial kosher kitchens operated in the area. Kern insisted that in order to have religious meetings at his home, the building would require “upgrading the facility to commercial type standards,” which could include upgrading the “wastewater system,” adding “water suppression to meet fire code,” and making the house ADA-compliant. After completing those upgrades, the most that the Hawaii County Planning Director would guarantee was to consider a use permit— but no guarantee that it would be issued.

Although Rabbi Gerlitzsky notified the Planning Department that he was no longer using his residence as a synagogue but was only inviting people over as private individuals, the county rejected that explanation, noting that neighbors were complaining about the vehicles of Rabbi Gerlitzky’s visitors. The fines continued to accrue, and as of February 13, 2024, they have reached over $50,000, and are can increase to over $200,000 by the end of 2024.

Left with few options, Rabbi Gerlitzsky has sued Hawaii County and its Planning Director, claiming that his religious rights have been violated. While other homes on Rabbi Gerlitzky’s street have hosted large events, those gatherings have not incurred fines and threats for the homeowners who host the events.

Similarly, Pyramid House, a venue in the home of a member of the community approximately two miles away from the Chabad House, in a neighborhood with much less street parking available, received permission—sans any use permit—to host musical events and “talks on spirituality” in the private home once the Planning Department was informed that the owner was only accepting donations, not charging admission, for the events. A photo on the website of Pyramid House shows approximately 90 seats set up for an upcoming event.

In their filing of the suit, Rabbi Gerlitzsky asserts that his First Amendment rights are being violated by fining them and placing a substantial burden on their religious free exercise, while at the same time allowing comparable secular gatherings to occur in the same area and leaving them without enforcement. In addition, only meeting facilities of religious institutions require permits, while other meeting facilities may operate without any permit.

Furthermore, the Religious Land Use and Institutionalized Persons Act (RLUIPA) prevents governments from “impos[ing] or implement[ing] 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 County’s zoning ordinance, which require permits for religious meeting facilities but not for secular meeting facilities disfavors religious activities and organizations on its face, and thus violates RLUIPA’s equal-terms provision.

The plaintiffs are seeking to enjoin the county from prohibiting Rabbi Gerlitzky from using his home as a meeting facility. They are also seeking monetary damages, including attorney fees and costs in connection with bringing and pursuing the case.

Rabbi Gerlitzsky is being represented by Ryan Gardner, and attorney for the prestigious Texas based First Liberty Institute, an organization which defends religious liberties nationwide. First Liberty Institute was victorious in June 2022, in Kennedy v. Bremerton School District when the United States Supreme Court ruled that the Bremerton School District violated the rights of a football coach, Joseph Kennedy, when they fired him for praying on the filed after the completion of the game.

In June 2023, First Liberty Institute won another decision by the United States Supreme Court, Groff v. DeJoy, in which the court decided that in order to justify denial of accommodation for an employees religious practice, it must show “substantial increased costs in relation to the conduct of its particular business” rather than the previous standard of “de minimis,” or minimal, cost on the business.

First Liberty Institute has partnered with Gibson, Dunn & Crutcher LLP, a national firm with offices all over the country, and is being handled locally by Robert Christensen of Kilauea, Hawaii.

“We want to practice our faith with other Jews in the community,” Rabbi Gerlitzsky told Hamodia. “Our goal is to be ambassadors for G-d Almighty to bring light, faith, and goodness to the island. We pray that the county will assist us in doing so, or at least not interfere.”