New York State has announced plans to appeal to the U.S. Supreme Court lower court rulings striking down the stateís kosher laws as unconstitutional. This despite the private concerns of some in the Jewish community that an unsuccessful appeal could potentially upset kosher laws nationwide.
A source close to the case said he preferred not to see the case appealed to the High Court because a loss could jeopardize all of the kosher laws nationwide. The source, who asked to remain anonymous, said he would rather risk seeing the New York statute rewritten than seeing a blanket rejection of kosher laws across the country.
"I’ve heard that argument expressed," said David Zwiebel, executive vice president for government and public affairs of Agudath Israel of America, which has joined the suit along with several other Jewish organizations and state officials. "But my sense is there is a greater benefit to get the Supreme Court to give its guidance. It has tended to lower the wall of separation [between church and state] a bit, so there is certainly a good chance it will be receptive to the arguments of why the law should be upheld."
Zwiebel, Agudahís general counsel, said he believes the kosher laws in California and Massachusetts are on shakier ground than the New York law and therefore "there is much more to be potentially gained by going to the Supreme Court now."
The kosher laws in New Jersey and Maryland both were ruled unconstitutional. The U.S. Supreme Court refused to hear an appeal of the New Jersey law.
Other Jewish leaders representing organizations that have also intervened in the case to support the state’s defense of the kosher laws voiced similar sentiments to Zwiebel.
"This is probably the best case to go up on because New York Stateís statute is really a fraud statute that should not turn on religious issues at all," said Julius Berman, who for more than 20 years chaired the kashrut division of the Orthodox Union.
"There is no alternative but to go further," said Rabbi Hersh Ginsberg, chairman and director of the Union of Orthodox Rabbis. "Until now we have been successful in getting the kosher laws accepted. We can’t give up New York State’s law just because of [the lower court decisions]. We have to fight it tooth and nail and protect the entire country."
The appeal to the U.S. Supreme Court involves a 1996 suit filed by the owners of Commack Self-Service Kosher Meats that contended the stateís kosher laws are unconstitutional because they are based on Orthodox Jewish law. The Long Island store’s owners, brothers Jeff and Brian Yarmeisch, said their store is under the supervision of a Conservative rabbi and that they followed his dictates.
The suit was triggered after inspectors from the kosher law enforcement division of the state Department of Agriculture and Markets slapped Commack Kosher with a series of alleged kosher law violations over 10 years. The store was cited for not properly soaking and salting meat and for not properly de-veining meat.
Robert Dinerstein, the lawyer for the Yarmeisch brothers, said the state’s action amounted to nothing less than an "undeserved campaign of harassment" because his clients had refused to knuckle under to the state’s directives.
"The division insisted that Commack Kosher was guilty of purported violations despite the fact the state’s records confirm that Commack Kosher’s supervising rabbi went on record that, even by Orthodox Jewish standards, Commack Kosher was not guilty of any such violation," Dinerstein said.
The state courts and the U.S. 2nd Circuit Court of Appeals all agreed with Dinerstein. In its May 21 decision, the federal court ruled that contrary to the state’s assertions, there are undeniable differences of opinion within Judaism regarding kosher laws.
"As a result, because the challenged laws interpret ‘kosher’ as synonymous with the views of one branch, those of Orthodox Judaism, the state has effectively aligned itself with an internal debate within Judaism," it wrote. "This it may not do."
On Aug. 1, the federal court refused a state request to reargue. Gov. George Pataki asked the court last week to stay its decision to allow the state to continue enforcing the kosher laws pending an appeal to the High Court.
Assembly Speaker Sheldon Silver said it is uncertain whether a stay will be granted and that it is therefore "very important for the public to be cautious and to know who the supervising rabbi is" before they buy.
But Silver said that whether the state wins or loses in defending the kosher laws, which were enacted in 1915, he believes they must be rewritten to make them more coherent.
"The existing law evolved over so many years that I think it would be good, even if the existing law is [ruled] permissible, to codify it into a logical sequence," he said, adding that the law today is a "patchwork" of laws strung together.
Brian Yarmeisch said any rewriting of the kosher law should remove the requirement that it be based on Orthodox Jewish practice.
"People don’t like us because we took the power out of the hands of the Orthodox," he said. "We weren’t looking for a stoppage of consumer protection, which is why we tried to have the law changed before filing suit. But no one listened to us. It could have been done quietly without embarrassing Pataki, but they kept saying they could not take the word Orthodox out of the law."
"Because we are Conservative, we were targeted," Yarmeisch insisted. "And more than half of our business has not come back because people now have doubts."
But Silver contends that the Yarmeisch brothers ran into problems when "they told the world they don’t adhere to [Orthodox] standards."
"So the general public doesn’t go there because they don’t adhere to the generally accepted kosher standards," Silver said.
Asked about the courts’ findings that the kosher law is unconstitutional because it follows Orthodox practice, Silver said that over time "the meaning of kosher has become synonymous with being according to Orthodox standards. The issue is not the establishment of Orthodox [practice], but rather the establishment of what the general public believes kosher to be."
Herbert Berman, a special assistant to Pataki, added that the state views the kosher laws as a "consumer protection law, not a religious law, because it protects the rights of people who are required to buy kosher."
"We believe the issue is so outstanding because people who observe the kosher laws do so out of a compelling necessity and therefore they need to be protected," he said.