The United States Supreme Court's refusal to hear an appeal
of a federal Court of Appeals decision that New York State's
118-year-old "kosher law" is unconstitutional, is
"disappointing and dangerous," according to Agudath Israel of
America, and "a harbinger of harm to the unsuspecting
consumer."
The decision of the Supreme Court not to review the lower
court's decision means that the previous court's decision is
binding within its area (including New York) and will have
some impact as a precedent in other areas.
The case that triggered the legal proceedings involved
Commack Kosher Meats which was run by Conservative owners and
found by state inspectors to have improperly salted and
soaked kosher meats.
Agudath Israel was part of a larger group of prominent Jewish
individuals and organizations represented by attorney Nathan
Lewin which, along with the Kosher Law Enforcement Division
of the New York State Department of Agriculture and Markets,
the agency that administers the state's kosher laws, asked
the U.S. Supreme Court to reverse the appeals court
ruling.
That ruling determined that the New York law setting up an
agency to ensure that products sold as kosher really are
kosher, requires secular government officials to make
religious determinations in deciding whether a food is in
fact "kosher" under the statute's definition, thus violating
the First Amendment's "Establishment Clause" which prohibits
entanglement of state and religion. The court also objected
to the law's requirement that "kosher" be measured by
"Orthodox Hebrew religious requirements."
Agudath Israel, through its executive vice president for
government and public affairs Chaim Dovid Zwiebel, maintained
that "this is a question of consumer protection, not
religious establishment. Government has every right to insist
that a product claiming a certain feature actually possesses
that feature, as a typical, reasonable consumer would
understand it. That right is no less present in the context
of kosher food than it is in the context of used cars and
designer jeans."
In fact, the Agudath Israel representative pointed out, in an
earlier case in which the New Jersey state kosher laws were
under challenge, a legal brief submitted on behalf of the
Conservative, Reform and Reconstructionist rabbinates
acknowledged that the word "kosher" is broadly understood as
encompassing Orthodox standards. "True," Zwiebel said, "the
concept of kashrus is inherently religious. But that doesn't
make the labeling of products as kosher any less of a secular
consumer issue than whether a `salt-free' or `organically
grown' product is what it claims to be."
The appeals court ruling will now stand, a fact that Mr.
Zwiebel considers very unfortunate. "Any unscrupulous vendor
in New York can now deliberately seek to mislead the public
into thinking a food item is kosher when it is not."
The Agudath Israel leader says that his organization,
together with other interested parties, will be examining a
different model of legislation for New York that will provide
some measure of kosher consumer protection.
"One possibility," he said, "is an approach that has been
taken in other jurisdictions like New Jersey and Maryland,
which requires public disclosure of the basis of a vendor's
claim that a food product is kosher, including information
about any certifying kashrus authority.
"Such an approach avoids the constitutional issues and will
allow prosecution of any vendor claiming to have a kashrus
certification he does not."
Mr. Zwiebel says that Agudath Israel has been exploring as
well the possibility of federal legislation.
"In the end, though," he notes, "the responsibility for
evaluating any certifying organization's standards, properly
claimed, will ultimately fall to the consumer. And the
operative adage will be `Buyer Beware'."
