The pluralism wars that have proved so polarizing in Israel are being played out in another arena locally: a Brooklyn federal courtroom. Attorneys for the state of New York and Assembly Speaker Sheldon Silver are seeking to defend the constitutionality of the state’s 117-year-old kosher laws, which are being challenged by a Long Island butcher. The butcher’s lawyer, Robert Dinerstein of Commack, L.I., argues that the laws are based on "Orthodox Hebrew religious requirements," which he said discriminate against his client, whose store is under the supervision of a Conservative rabbi.
Oral arguments last month before Judge Nina Gershon demonstrated just how complex and confusing the case is for the judge: and some of the lawyers themselves.
Assistant Attorney General Michael Siller began by telling Gershon that the state’s Department of Agriculture and Markets, which is responsible for enforcement of the kosher laws, "interprets kosher to mean whatever the person making the representation believes it means in good faith."
But, the judge wanted to know, why do the violations issued to the butcher, Commack Self-Service Kosher Meats, say the establishment was in violation of Orthodox Hebrew religious requirements on March 22, 1993.
Siller replied that the case stemmed in part from packages of ground turkey found by a state inspector in a walk-in storage freezer. They were wrapped but did not have a label saying they had been soaked and salted.
"The question was, was there a label or not," he said. "We do not get involved in religious disputes. We do not tell somebody you are not kosher enough or that your definition of kosher does not purport to comply with the stateís working definition of kosher. The state does not have a working definition."
How could the inspectors issue violations without a definition? Gershon asked.
"Orthodoxy is the standard against which all standards of kosher or kashrut are measured," Siller said. "Measured by the state?" asked the judge.
"Measured by anybody that purports to call themselves kosher," said Siller. "Everyone recognizes that Orthodox is the standard by which it all starts. … We the state, the department, recognize there are a variety of standards and we do not purport to have them adhere to an Orthodox standard."
Nathan Lewin, the attorney for Silver, who intervened in the case in defense of the kosher laws as defined by Orthodox requirements, told the court that any proprietor using the word kosher must use it "in a way that the consumers understand it."
Gershon then asked: "How would you feel about a statute that said kosher means in accordance with Conservative Jewish religious requirements?"
"I think the legislature would be, quite frankly, not reflecting what the community believes," said Lewin. "Here the legislature and the New York courts over all these years have said the word kosher means by Orthodox standards."
But Dinerstein told the court that such standards are "illusory: it is only as real as the rabbi you follow." He said there is no English translation of the Code of Jewish Law, which forms the basis of the kosher laws. And he said a leading kosher supervisory agency recently published an article saying that supervisory agencies should not become a substitute for one’s own rabbi.
"Mr. Siller represented to this court that they don’t make religious determinations," said Dinerstein. "I submit to you that by definition there is no way they can avoid making this an ecclesiastical issue."
He said the state did just that when it issued a violation to a kosher store for selling non-kosher wine that would be kosher "according to Conservative standards. … We’re showing an impermissible partiality for the Orthodox tradition if this court allows [to stand] a statute which has been found by this court … to establish Orthodoxy as the only acceptable standard of kashrut in the state of New York."
At another point in the hearing, Gershon questioned whether "the state is entitled to make decisions about doctrinal disputes. For example, I assume that even Orthodox religious requirements might change over time, and for the state to make a determination as to whether or not someone is in violation, they would have to look to doctrine. … It seems to me the question [is whether] people can be required to meet a particular religious requirement."[The chancellor of the Conservative movement’s Jewish Theological Seminary, Rabbi Ismar Schorsch, said in an interview that "on the level of principle, there is complete agreement [among Orthodox and Conservative Jews] that food needs to be sanctified. Differences are over details."]