I believe the NY case was Commack Self-Serv. Kosher
Meats, Inc. v. Weiss, 294 F.3d 415, 418 (2d Cir. 2002)
Last August Professor Friedman posted a story on a
lawsuit filed by a Conservative rabbi challenging the constitutionality of
Georgia's Kosher Food Labeling Act on the grounds that the law provides that
food can only bear a kosher label if it meets "Orthodox Hebrew religious
rules and requirements."
In other words the State of Georgia has chosen to use an "Orthodox" definition of kashrut. This poses a significant Establishment Clause problem. Why is the State taking a particular religious definition of kashrut? Forget Orthodox vis a vis Conservative for a minute. What about various strains of Orthodoxy? Is Hebrew National not kosher because it has a Triangle K and not an OU?
In other words the State of Georgia has chosen to use an "Orthodox" definition of kashrut. This poses a significant Establishment Clause problem. Why is the State taking a particular religious definition of kashrut? Forget Orthodox vis a vis Conservative for a minute. What about various strains of Orthodoxy? Is Hebrew National not kosher because it has a Triangle K and not an OU?
While the idea of the government protecting the kosher
consumer from fraud is commendable, over the years a number of similar laws in
New York, Maryland and New Jersey have been struck down by the courts for this
very reason. As the New Jersey Supreme Court said, requiring businesses to
comply with a particular Jewish religious standard "inextricably"
entangled Jewish law with secular law. When challenged, the state has no choice
but to determine what the true definition of kashrut is. It must choose between
Rabbi A's definition and Rabbi B's definition. And that is something the state
should never be put in a position of doing.
Kosher food laws should not be based on any one particular religious standard to determine whether it's kosher or not, especially because there is no standard universally agreed upon within the Jewish community. Instead, kosher fraud laws should rely on full disclosure made by the seller. A kosher fraud law should state that anyone selling kosher food is required to disclose the basis upon which that claim is made. In other words, if Butcher Z says I am selling kosher meat then he must produce some documentation from Rabbi A attesting to its kashrut. If a consumer trusts Rabbi A then he will buy from Butcher Z. If not, armed with all the facts and with full disclosure, he can go across the street to Butcher X who discloses that his products are under the supervision of Rabbi B.
The state's only involvement in enforcing these laws would be to see if the food sold is in compliance with that disclosure statement, not whether it is in compliance with "Orthodox Hebrew law." This solution still allows the state to fulfill its goal of protecting consumers from fraud while not entangling it in religious doctrine and violating the Establishment Clause in the process.
Kosher food laws should not be based on any one particular religious standard to determine whether it's kosher or not, especially because there is no standard universally agreed upon within the Jewish community. Instead, kosher fraud laws should rely on full disclosure made by the seller. A kosher fraud law should state that anyone selling kosher food is required to disclose the basis upon which that claim is made. In other words, if Butcher Z says I am selling kosher meat then he must produce some documentation from Rabbi A attesting to its kashrut. If a consumer trusts Rabbi A then he will buy from Butcher Z. If not, armed with all the facts and with full disclosure, he can go across the street to Butcher X who discloses that his products are under the supervision of Rabbi B.
The state's only involvement in enforcing these laws would be to see if the food sold is in compliance with that disclosure statement, not whether it is in compliance with "Orthodox Hebrew law." This solution still allows the state to fulfill its goal of protecting consumers from fraud while not entangling it in religious doctrine and violating the Establishment Clause in the process.
Rabbi Michael Simon
Temple Beth Kodesh
Boynton Beach, Fl
(954) 257-6159
www.TempleBethKodesh.org
http://www.facebook.com/home.php?#/group.php?gid=72595149028
Temple Beth Kodesh
Boynton Beach, Fl
(954) 257-6159
www.TempleBethKodesh.org
http://www.facebook.com/home.php?#/group.php?gid=72595149028
-----Original Message-----
From: Marc Stern <ste...@ajc.org>
To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu>
Sent: Wed, Jan 5, 2011 5:27 pm
Subject: RE: The End of NY's Kosher Inspectors
From: Marc Stern <ste...@ajc.org>
To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu>
Sent: Wed, Jan 5, 2011 5:27 pm
Subject: RE: The End of NY's Kosher Inspectors
The first permanent Kosher law was enacted
in NY in 1917 to combat what was then rampant an open fraud in the sale of
kosher meat( Its constitutionality against a due process vagueness challenge
was upheld by the US Supreme Court.). I summarized this history in an article I
wrote in the journal Judaism about 15 years ago ,but it is not available on
line.(Kent Greenawalt wrote something subsequently.) There is also a good but
hard to get book on the subject whose name I would have to dig out.
More recently, the New York, New
Jersey, Maryland (Baltimore) and Georgia laws were invalidated because
they allowed the state to decide a religious question-was the food kosher. Now
all states work on the basis of mandatory disclosure statements and the inspectors
simply police the presence and accuracy of those statements.
Marc D. Stern
Associate General Counsel
for Legal Advocacy
646.287.2606 (cell)
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From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
<paul.finkel...@albanylaw.edu>
Sent: Wednesday, January 05, 2011 05:21
To: Law & Religion issues for Law Academics
Subject: RE: The End of NY's Kosher Inspectors
Sent: Wednesday, January 05, 2011 05:21
To: Law & Religion issues for Law Academics
Subject: RE: The End of NY's Kosher Inspectors
I once knew a lot about this; but that was years ago; I am at the
AALS meeting now and can’t access information. There is an essay on
Kosher inspection laws in Religion and American Law: An Encyclopedia
(Routledge [formerly Garland] 1999), which I edited. The laws date from the
early 19th century, I believe
----------------------
Paul Finkelman
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland
Avenue
Albany, NY 12208-3494
518-445-3386 (o)
518-445-3363 (f)
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman
Sent: Wednesday, January 05, 2011 4:00 PM
To: Law & Religion issues for Law Academics
Subject: The End of NY's Kosher Inspectors
Sent: Wednesday, January 05, 2011 4:00 PM
To: Law & Religion issues for Law Academics
Subject: The End of NY's Kosher Inspectors
According to the story below, NY has decided to nix its Kosher
inspectors as a way of spending money. Does anyone know the details (and
citation) for the 2004 case mentioned in the article? Also, I am
wondering what precisely the inspectors after the decision. Finally, does
anyone know why the inspectors were set up in the first place? Why wasn't
the issue simply solved by having private kosher audits by reputable bodies?
The idea of a state Kosher inspector just seems perverse and unnecessary
to me. What am I missing?
http://online.wsj.com/article/SB10001424052748704735304576058100916662270.html?mod=WSJ_hps_sections_newyork
~~~~~~~~~~~~~~~~~~~~~~~~
Nathan B. Oman
Associate Professor
William & Mary Law School
P.O. Box 8795
Williamsburg, VA 23187
(757) 221-3919
"I beseech you, in the bowels of Christ, think it possible you may be mistaken." -Oliver Cromwell
~~~~~~~~~~~~~~~~~~~~~~~~
Nathan B. Oman
Associate Professor
William & Mary Law School
P.O. Box 8795
Williamsburg, VA 23187
(757) 221-3919
"I beseech you, in the bowels of Christ, think it possible you may be mistaken." -Oliver Cromwell
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