Call it a case of penny wise and kosher pound foolish. Fearful that a federal judge would almost certainly strike down New York State’s kosher food enforcement laws as unconstitutional, state officials for years tried to negotiate an out-of-court settlement with two Long Island butchers challenging the century-old statutes.
But in the end, state officials chose not to settle and pay perhaps hundreds of thousands of dollars in legal damages.
"It all came down to money," said one source close to the case. "Initially the state agreed to pay legal fees plus damages, but in the end it reneged."
As a result, New York’s kosher laws are canceled and kosher consumers are in limbo.
As reported in The Jewish Week, Brooklyn Federal Court Judge Nina Gershon overturned the laws last week and imposed an injunction on the state’s ability to enforce them.
Now, state government officials (joined by several Orthodox groups) find themselves in the unenviable position of appealing the decision by Gershon, who declared they violated the First Amendment by "endorsing and advancing religion."
Religion and legal experts agree that New York ultimately will have to rewrite the kosher laws to eliminate any religious standards, thus watering them down as merely consumer protection legislation.
"There’s no question [the ruling] is going to be affirmed by the 2nd Circuit Court" on appeal, said Marc Stern, legal director of the American Jewish Congress. "If [state lawmakers] want to have a kosher food law, they are going to have to substantially revise it."
Stern and others suggest that state officials made a critical mistake by giving Gershon the opportunity to declare the laws unconstitutional. By doing so, they have virtually killed the state Legislature’s chances of drafting new kosher legislation requiring Jewish religious standards.
"They would have been better off if they had not had a formal decision of unconstitutionality," Stern said. "This genie is not going to be put in back in the bottle so easy."
Parties involved in the settlement efforts said the court barred them from discussing the talks.
The lawsuit was filed in 1996 by Commack Self-Service Kosher Meats after it was slapped with five kosher law violations over six years by state inspectors. The suit claimed the butcher shop operated under the direction of a local Conservative rabbi but the state disregarded the rabbi’s rulings on the grounds that it was following Orthodox kosher laws.
Legal experts this week said the case should not necessarily be seen as an Orthodox vs. Conservative battle but as a problem of strict vs. liberal kosher standards.
Sources close to the case said the state was so concerned about the challenge that it agreed to a four-paragraph stipulation on the interpretation of the kosher laws. The stipulation said Orthodox kosher laws would not be the basis for the law and that the state could not question a rabbi’s assertion that a product was kosher.
Sheldon Silver, the Orthodox state Assembly speaker who joined the suit supporting the state, seemed to concede this week that while New York will go through the motions of appealing, a new solution will be necessary.
"Even if we don’t win on appeal, I’m fairly confident we can get some clarifying language and direction as to what is permissible and what isn’t," said the Lower East Side lawmaker.
A spokesman for state Attorney General Eliot Spitzer, who is defending the laws, said Tuesday an appeal would be filed as soon as possible.
"In the interim we will seek a stay of [Gershon’s] decision within the next week so that the current protections remain in place," said Scott Brown.
As to rewriting the laws, Brown said that is the domain of the state Legislature.
Meanwhile, the state seems to have two ready options.
One is to look west and duplicate New Jersey’s kosher laws, which had to be rewritten six years ago after being declared unconstitutional for violating church-state separation in 1993.
New Jersey now requires kosher food vendors to disclose their definition of kosher by posting signs in their stores and filing copies with the state Consumer Affairs Division.
Unlike the old regulations, no standard of kosher is established by the state. Consumers must read the merchantís sign and decide if they find the standards acceptable. The state can inspect stores to ensure they conform with their posted kosher procedures. Stores that don’t can be cited for violating the Consumer Fraud Act.
"I think its marvelous. It’s the best thing," Rabbi Jeffrey Rappoport, editor in chief of the Kosher Nexus newsletter of the Teaneck, N.J.-based Union for Traditional Judaism said of the laws. "It puts the onus of the responsibility on the consumer, where it really does belong."
A second option for New York is to convene a "kosher summit" from the three major denominations to negotiate a minimum baseline standard of kashrut, suggested Rabbi Joel Roth, a kosher expert and a professor of Talmud and rabbinics at the Conservative movement’s Jewish Theological Seminary.
"I think the kosher consumer is best served by nearly universal acknowledged standards of kashrut," he said.
While it is not assured that such pan-denominational agreement would pass constitutional muster, Rabbi Roth said he thinks "there’s a chance" that the denominations "could agree to baseline minimum standards" for kosher foods, and perhaps draft acceptable legislation.
UTJ executive vice-president Rabbi Ronald Price offered to host such a meeting.
"I would be happy to sponsor such a summit to reach agreement on what kosher standards would be and protect Jewish consumers from scams," said Rabbi Price.
Chicago Rabbi Peter Knobel, chairman of the national Reform rabbis’ ritual practice committee, said he would participate.
"I would be open to that conversation," he said, noting the increased level of kosher observance in the Reform movement in recent years.