A bottle of wine, a slice of cheese and a package of frozen vegetables are now at the center of a new federal lawsuit challenging the constitutionality of revised New York State kosher laws.
These foods and others, according to non-Orthodox standards, are inherently kosher and thus do not need a kosher seal. That was the belief of the two Commack, L.I., butchers who in 2000 successfully challenged the state’s century-old kosher laws. The new law, they believed, required only that they post a sign stating the name of their kosher supervisor.
But they were “appalled” last October when a state inspector showed up to make sure that all the ingredients they were using carried a kosher seal or heksher.
“We find it reprehensible that, after this court declared New York’s kosher laws to be unconstitutional, the state had the audacity to try and backdoor the enforcement of kosher laws,” said Brian Yarmeisch, one of the Commack butchers.
In his suit, filed Monday, Yarmeisch pointed out that the 2nd Circuit Court of Appeals had found that there is no unanimity of opinion when it comes to the laws of kashrut and that he and his brother, Jeffrey, had followed the dictates of their kosher supervisor, William Berman, a Conservative rabbi.
“It is incredibly presumptuous for the state to dispatch [an] inspector to second-guess or monitor our kosher supervisor,” Yarmeisch said in his suit. “It defies credulity that given past history, the state would enact ecclesiastic law.”
The suit comes just four months after the Yarmeisch brothers filed another suit complaining that the state was violating its own law by sending kosher inspectors into kosher establishments to “second guess a certifier’s interpretation of Jewish law.”
The state has not yet responded to that suit, according to the Yarmeisch’s lawyer, Robert Dinerstein of Commack, L.I.
Supporting affidavits in the new suit were filed by Rabbi Berman, spiritual leader of the Commack Jewish Center, and two neighboring congregational rabbis: Moses Birnbaum of the Plainview Jewish Center, and Ian Silverman of the East Northport Jewish Center.
In his affidavit, Rabbi Silverman explained that there are many Jewish denominations and that each has its own practices “just as there are numerous Protestant faiths each of which has the right to determine its rights and practices.”
“The state should no more have the right to legislate practices and customs for the sects/denominations of Judaism than it would have to do so for any of the Protestant faiths,” Rabbi Silverman said.
All three rabbis stressed that “there are any number of food products for which the Orthodox Jewish denominations/sects may require inspection and heksher labels” but non-Orthodox believe are acceptable even if not prepared under kosher supervision.
“Some products which immediately come to mind … are: many dairy products, including cheeses, which do not contain non-kosher additives; and most wines, brandy, cognac, sherry, vermouth and champagne without supervision and which do not bear labels/hekshers are acceptably kosher,” according the rabbis’ affadavit.
In addition, they pointed out, the Conservative movement has ruled that, contrary to the view of Orthodox Jewish denominations, a “product otherwise deemed kosher is not rendered unacceptable/unkosher if the product contains animal gelatin (often used for marshmallows) or rennet (frequently used in the process of making cheese).”
In his affidavit, Rabbi Berman said that although the Orthodox Jewish community may disagree with the practices of non-Orthodox Judaism, “the state is infringing upon the religious freedom of the non-Orthodox denominations/sects of Judaism by compelling [them] to adhere to the law requiring labels on all kosher food products.”
Calls to the spokesperson for the state’s Department of Agriculture and Markets, which oversees the kosher laws, were not returned. Attorney Nathan Lewin, who had argued in behalf of the original kosher laws, said he “could see an argument for both sides. … The question is whether a consumer is entitled to know that the ingredients that have gone into the end product [made on the premises] have some sort of certificiation.”
In his court papers, Yarmeisch said he recently learned that the owner of a kosher deli supervised by a non-Orthodox rabbi was informed by the state that he would be breaking the law if he continued to use frozen vegetables that did not carry a heksher — even though they were acceptable to his supervising rabbi.
Jeremy Lebewohl, an owner of the Second Avenue Deli in Manhattan, said that in the six months his restaurant has been open at its new location on 33rd Street, a state kosher inspector has visited two or three times.
“All of my products are kosher,” he said, noting that his mashgiach [kosher supervisor] is an Orthodox rabbi, Yisroel Steinberg. “The only thing that might not have a heksher is if I buy canned mushrooms. I would call my mashgiach, tell him the product information and he would tell me if it is OK.”
“If he says it is 100 percent OK and the state comes in and says it has no heksher, it’s treif [not kosher], I’m in violation of the law even though my mashgiach said it was OK,” Lebewohl continued. “I have not yet had a problem, but why should I as an owner be put in a situation where I am at risk? If the state inspector has a problem with anything in my restaurant, his problem should be with the mashgiach and not me.”
The suit was filed before Brooklyn Federal Judge Nina Gershon, who had issued the August 2000 decision overturning the state’s kosher laws. It asks her to issue a preliminary injunction to prevent the state from continuing to enforce the contested sections of the state’s Agriculture and Markets Law.
In her earlier ruling, Gershon found that the state had violated the First Amendment because “the entanglements involved here between religion and the state are not only excessive in themselves, but they have the unconstitutional effect of endorsing and advancing religion.”
The brothers had alleged that their business had been subjected to “irregular, arbitrary and capricious” state kosher inspections that had resulted in fines for everything from failing to properly label kosher chicken to incorrectly salting veal spare ribs.
When the state issued another citation in 1993 shortly before Passover and sought to impose an $11,100 fine, Yarmeisch said in court papers that he and his brother were convinced the state was out to “cripple, if not destroy, our business.” And the fact that the state released the information to the Jewish media “compounded the damage to our business reputation for reliability in matters of kashrut as well as to our personal reputations.”
He said that although their suit challenging the kosher laws was ultimately successful, their business has not fully recovered from the state’s actions against them. Three years ago, Yarmeisch said, they calculated that they had suffered damages in excess of $7 million.
The brothers have cut back on staff and moved to a store in the same shopping center that has about half the space of their old store. And in an attempt to rebuild their business, they changed their name from Commack Self-Service Kosher Meats to Commack Deli and Market, focusing on their deli and prepared food operation instead of butchered meat and poultry.