As many as 17 states may have to join New York in reconfiguring kosher consumer enforcement legislation now that the U.S. Supreme Court has dealt a death blow to the Empire State’s model, but long-troubled, law.
The high court on Monday declined to get involved in the case between a Long Island kosher butcher and the state’s Department of Agriculture and Markets.
Without comment, the justices refused to hear a last-ditch appeal to save the 88-year-old statute, which was twice declared unconstitutional, most recently in May by the U.S. 2nd Circuit Court of Appeals in Manhattan.
By bringing suit against the state, the owners of Commack Self-Help Kosher Meats in Suffolk County essentially have neutralized the agriculture department’s Kosher Law Enforcement Division and perhaps its counterparts in other states: a consequence they insist was not their intention.
"It’s a shame it had to come to this," said Commack owner Brian Yarmeisch in a statement related by his lawyer, Robert Dinerstein. "We were only seeking to stop the harassment [that was done] because we had supervision by a Conservative rabbi."
Yarmeish and his brother, Jeff, argued in their 1996 lawsuit that by repeatedly citing their establishment for alleged infractions because they did not adhere to Orthodox standards of kashrut, the state agency (administered by Orthodox and chasidic Jews) was crossing the line from consumer oversight into unconstitutional religious entanglement.
The courts agreed, prompting the appeal from Orthodox proponents of the bill and Attorney General Eliot Spitzer.
Twenty states have passed kosher enforcement statutes in recent years, but New Jersey and Maryland have modified them in response to challenges so that individual merchants may declare which standard of kashrut they use.
The Supreme Court already had refused to hear an appeal of the New Jersey case.
Gov. George Pataki and Assembly Speaker Sheldon Silver both announced Monday that they would seek to enact a new law as quickly as possible.
But activists on both sides of the debate differed on whether the 17 other states (among them California, Connecticut, Georgia, Kentucky, Texas, Virginia and Washington) will have to do the same.
"It’s finished," said Marc Stern, legal and religious affairs expert for the American Jewish Congress. His organization had filed a brief in support of the plaintiffs.
"If other states have the same law, it’s pretty hard to see how they can enforce it," Stern said. "It was unconstitutional from the beginning and it’s hard to see what all the fuss was about."
But David Zwiebel, executive vice president for government and public affairs at the Orthodox Agudath Israel America, noted that the Supreme Court’s refusal to hear the case was not the same as ruling against the law.
"There is not a Supreme Court precedent," said Zwiebel. But he acknowledged that because New Jersey, Maryland and now New York had been forced to change their laws, "the weight of precedent is certainly not favorable and I would guess [the remaining states] are on thin ice."
Agudath Israel was among the organizations that took a risk by presenting the appeal to the Supreme Court because of the potential to undo laws in other states. Agudah considers the law a consumer protection measure, akin to those protecting purchasers of used cars or designer jeans.
Last summer, Pataki succeeded in obtaining a stay of the federal court’s decision so that inspectors for the Kosher Law Enforcement Division could continue their work. It is unclear what will become of the division now that its work has been definitively labeled unconstitutional.
Rabbi Luzer Weiss, a Satmar chasid from Brooklyn who was appointed director of the division in 1999, could not be reached for comment. A spokeswoman for the Department of Agriculture and Markets, Jessica Chittenden, had no immediate comment.
In a statement Monday, Pataki said he was disappointed in the turn of events, but added "I remain strongly committed to protecting New Yorkers who consume kosher products." Pataki said he was seeking "remedial legislation."
It was unclear Monday if the governor would draft his own bill or support one proposed by a member of the Legislature.
Silver said in his statement: "I intend to review the range of court decisions and come up with legislation to continue New York’s tradition of protecting kosher consumers."
Freshman assemblyman Ryan Karben of Rockland County, noting that he was one of a small number of kosher-observant legislators, said he would "confer with colleagues and Attorney General Spitzer to craft additional laws that will address the court’s concerns."
Assemblyman Dov Hikind of Brooklyn, who is also Orthodox, said the Legislature would "do whatever it takes" to restore kosher enforcement.
Zwiebel said he had been contacted by the governor’s office to discuss the new legislation.
"I have not seen anything in writing," he said, "but I do imagine that careful consideration will be given to [the laws] in New Jersey and Maryland."