Although the U.S. Court of Appeals last week upheld New York’s kosher law, Rabbi Moses Birnbaum said he believes the way it is enforced is “ridiculous.”
“I have patronized a bakery since I was in college and it is under the highest kosher supervision,” he said. “Yet it was cited because someone bought a pastry and it didn’t have a [kosher] label on it. The whole store is kosher, but if I buy a loose pastry they will have to bag it and put a label on it. This is like aggressive enforcement of traffic regulations.”
Rabbi Birnbaum, spiritual leader of the Jewish Center of Kew Gardens Hills, added: “One has to wonder if their purpose is to enforce the law or to raise funds for the state.”
He was one of three local Conservative rabbis who submitted affidavits questioning the law in behalf of a Long Island kosher butcher who sued in federal court claiming the state law violated the U.S. Constitution.
The suit was brought by Commack Kosher Deli and Market, which successfully sued in 1996 to overturn the state’s 100-year-old kosher law. This new suit challenged the 2004 revised kosher law. It was filed in 2008 after a state inspector visited their deli and said it was his job to verify that the food offered for sale “was otherwise acceptably kosher.”
Although no violation was issued, the store owners, Brian and Jeffrey Yarmeisch and their mother, Evelyn, filed suit claiming that the inspector was not permitted by the Kosher Act to make such a determination.
One of their arguments concerned food items that are “acceptably kosher” to non-Orthodox Jews even if they do not bear a kosher label. They noted in their suit that Orthodox Jews would not buy such items without a kosher label, but said the fact that the law requires a kosher label means the state is adopting “Orthodox” standards — and thus unconstitutionally entangling the state in religion.
But the three-judge court dismissed that argument. In their decision, written by U.S. Circuit Judge Christopher Droney, the judges said the kosher law “does not adopt an Orthodox standard of kashruth, nor does it regulate what foods are acceptably kosher or take a position on what it means for a product to be considered kosher: each seller or producer of kosher goods has the ability to determine for itself what standard of kashruth they follow.
“The law only requires that if a product is held out to the public as ‘kosher,’ the product must bear a label describing it as such, and information is to be provided to the purchaser as to the basis for that description. The presence of the label does not affect the seller’s assessment of the kosher nature of a product and is not what makes a product kosher or not kosher. The label simply indicates to the consumers that the seller or producer, and its certifier, believe the food to be kosher under their own standards.”
In response to another argument that there is no religious requirement that all kosher products must bear a kosher label, the judges repeated that New York’s kosher law “does not enforce religious law or religious requirements. The Kosher Act merely requires food products marketed as kosher to be labeled as kosher.”
The court rejected also the claim that the revised kosher law is similar to the one held unconstitutional in 2002. The judges said the new law does not require a seller to follow Orthodox Jewish food preparation as the prior law did, and the state no longer conveys advisory power to a board comprised of six Orthodox rabbis.
It pointed out that state inspectors are empowered to only assess ‘compliance with and the accuracy of” the information filed with the state and not to “engage in a substantive evaluation of whether a food item is or is not ‘kosher.’”
“Such routine regulatory interactions between the state and sellers of kosher products, which involve no inquiries into religious doctrine, no delegation of power to a religious body, and no detailed monitoring or close administrative contact between secular and religious bodies, do not violate the non-entanglement command of the First Amendment,” the panel of judges ruled.
The lawyer for Commack Kosher, Robert Dinerstein, said his clients were unavailable for comment. He said no decision has yet been made whether to appeal the case to the U.S. Supreme Court.
“We’re still considering our options,” he said.
Rabbi Avi Shafran, director of public affairs for Agudath Israel of America, said his organization is “gratified” the law was upheld. He noted it also requires that products claiming to be kosher provide consumers with the name of the supervision service behind the claim.
“We have always maintained that such a law does not entangle government and religion, and is no different from laws that require nutritional or other consumer information,” he said. “That being the case, though, it's important for kosher consumers to realize that a claimed certification is no stronger than the individual or organization behind it. And so research into the standards represented by each of the panoply of kosher symbols is more important than ever.”
Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, also welcomed the ruling, noting that the OU “has been an advocate for laws that protect the kosher consumer against fraud.”
“That is really the issue, just like consumers generally should be protected against fraudulent marketing practices,” he said.
“One of their arguments was that the law was somehow vague, and you have doctrine in constitutional law in which a law is void for vagueness,” Diament added. “That was a lynchpin in this case.”
But the court dismissed that claim too, stating: “Even under the strictest standards of review, a person of ordinary intelligence would know how to comply with the labeling law. Moreover, there is no risk of arbitrary or discriminatory enforcement of the labeling provision.
“Additionally, the plaintiffs claim the inspection provision is void for vagueness. … Since the new law was enacted, the plaintiffs do not claim that they ever received a citation for a food product not being ‘acceptably kosher.’ Therefore, under the strictest scrutiny, the inspection provision is not void for vagueness.”