WHY KOSHER FRAUD STATUTES AREN'T KOSHER:
The Second Circuit Enforces The Separation Of Church And State

In the recent case of Commack Self-Serv. v. Weiss, the United States Court of Appeals for the Second Circuit assessed the constitutionality of New York's Kosher Fraud Statutes. It held that these statutes violate the Establishment Clause of the First Amendment to the U.S. Constitution - the provision some know as the separation of church and state.

The ruling has upset a number of Orthodox Jewish groups, who say that the statutes are essential to protecting the practice of Judaism from fraudulent conveyors of prohibited food products. The Court of Appeals, however, decided the case correctly. Its decision properly takes New York State out of the business of giving official recognition to one among a plurality of approaches to being an observant Jew in the 21^st Century.

The Meaning(s) of "Kosher": How New York Law Chooses Only One

For observant Jews, the word "Kosher" refers to food that they may eat without violating Jewish law. The New York Kosher Fraud Statutes define the word "Kosher" - when vendors use it to label food products - to mean food that has been "prepared in accordance with the Orthodox Hebrew religious requirements." (emphasis added).

To ensure compliance with the labeling requirement, the State's Department of Agriculture and Markets includes the "Kosher Law Enforcement Division" ("the Division"). The Division inspects the facilities of vendors claiming to produce Kosher food and evaluates their conformity to Orthodox Jewish law.

The Second Circuit found that the laws in question "excessively entangle government and religion" in violation of establishment clause precedents by, among other things, taking sides in a religious dispute (between the Orthodox and others) on the interpretation of Jewish dietary laws.

The Orthodox Response: A Single Standard As To Which Other Jews Fall Short

Having been raised as an Orthodox Jew, I could have easily predicted the response to this decision. There can be no dispute between the Orthodox and others about what is and isn't Kosher, I would have asserted confidently two decades ago. There is the law, and then there are those who compromise between convenience and God in deciding how much of it they will observe.

My family, for example, kept a strictly kosher kitchen at home but used to eat Kosher food - like spaghetti or fruit salad - in restaurants that also prepared and served non-Kosher food, even though we were Orthodox. More observant Jews than ourselves would eat only in restaurants with an Orthodox certification for their entire kitchen.

My family did not dignify our approach to Judaism with an interpretive gloss, however. We simply conceded that our observance level fell short of the ideal.

A couple of Catholic friends of mine could relate to this distinction. The man of the couple explained that although he and his girlfriend engaged in premarital sex, they nonetheless would not live together "in sin."

He did not claim a theological basis for drawing the line at living together. In colloquial terms, he and his girlfriend did not consider their sexual activity "Kosher." They simply chose to sin in this one respect but not to make the sin "official" by moving in with each other.

I encountered similar compromises in my yeshiva high school days, during which I often heard couples say that they did not observe "negiyah" (the Jewish prohibition against men and women touching one another). Both my adult friends and my high school classmates acknowledged that they were committing sins by engaging in sexual relations without the benefit of marriage. One might say, in other words, that neither had the "chutzpah" to assert that they were right and that those who observed the sexual prohibitions were wrong.

The same sort of approach may be what leads Orthodox Jews to defend the Kosher Fraud Statutes today. Their perspective is that by adopting the most rigorous standard for what is Kosher, the State ensures that every diner who seeks Kosher food gets what she wants and nothing less. Under this standard, moreover, those who might have been willing to compromise don't have to.

The assumption - that there is one meaning of "Kosher" or "sin" and that one can either conform one's behavior to it or fall short - thus underlies the defense of the Kosher Fraud Laws. Indeed, the Division claims that "no one disputes the meaning of the term 'kosher.'"

As the court explains, however, this is far from accurate. There are famous disputes, for example, between Orthodox Jews of Ashkenazi and Sephardic origin over the status of corn and rice on Passover.

And within Orthodox Judaism, there are disagreements over other matters as well. On one interpretation of Jewish law, for instance, the command to "be fruitful and multiply" permits married couples to use some kinds of birth control once they have produced one boy and one girl. On another interpretation, the couple may use contraception after having had two children of either sex. Finally, there are those who would never use contraception of any sort (unless having a child posed a threat to the health or life of the mother). Such families welcome eight, nine and more children into their lives as a matter of religious rectitude.

Why Involve the Government in These Disputes?

Though many Orthodox support the Kosher Fraud Statutes, no observant Orthodox Jew - at least in my experience - would assume that food is Kosher and permissible simply because a vendor has labeled it "Kosher" under the threat of New York fraud penalties. He would first want to know which Orthodox Rabbi certifies that it is Kosher.

In elementary school yeshiva, for example, I learned that the label (U) on food means an item is truly Kosher but that a K label cannot be trusted. A Rutgers colleague of mine, moreover, represented a Satmarer Hasid serving a prison sentence who claimed that the food he received was not really Kosher, even though it had the (U) seal of the Union of Orthodox Rabbis. As far as this prisoner was concerned, the Union of Orthodox Rabbis would happily give its seal of approval to a side of bacon.

Since the early Twentieth Century, the New York standard for Kosher foods - that is, an Orthodox standard - has been in effect. Apparently, however, this standard did not reassure Orthodox Jews that food labeled "Kosher" was necessarily fit for Jewish consumption.

For the Orthodox, then, the real opportunity for fraud is not in labeling food "Kosher." It is in claiming (perhaps falsely) that a particular Rabbi or group has certified its Kashrut.

It is only this sort of fraud in Kosher labeling that is actionable in New Jersey, for example, after its highest court in 1992 struck down a regime similar to the New York Kosher Fraud Statutes, on Establishment Clause grounds. Outlawing this brand of certification fraud raises no First Amendment concerns, for it asks only that the state make a factual determination (whether the claimed person or group really did certify the food as Kosher), not a religious one.

How New York Entered Into A Religious Dispute

If Orthodox Jews don't actually rely on most certifications anyway, one might wonder why any of them would consider the Kosher Fraud Statutes important?

The answer, I believe, is that the Kosher Fraud Statutes are meant to guide those who are not especially observant but who occasionally adhere to some version of Jewish tradition - perhaps on the High Holy Days or on Passover - and feel on such occasions that they want to buy food that says "Kosher" on it.

For such people, the Kosher Fraud Statutes will determine whether their occasional religiosity manifests itself as Orthodox, Conservative or something else.

If only food that meets Orthodox standards may be labeled "Kosher," then the casual observance of Judaism will be a casual Orthodox observance.

It is like the old joke about the Jewish atheist whose son comes home from school talking about the Christian Holy Trinity. The father scolds his son for such talk and explains that "we are Jews. There is only one God, not three, and we do not believe in Him."

For Orthodox Jews taking an interest in this case, there is a battle afoot for the souls of secular Jews. The Orthodox hope to attract Jews drawn even slightly to religion towards Orthodox practice.

If food products labeled "Kosher" in the supermarket must conform to Orthodox standards, then alternative approaches are thereby delegitimized. Through the Division, the government of New York State thus becomes a partner with Orthodox Judaism in spreading the message that the only valid Jewish observance is Orthodox.

The audience for this message - also the primary relevant audience for the unmodified "Kosher" label on food products - is thus the secular Jew. By calling an alternative interpretation of Jewish law "fraud" under New York statutes, the government of the State places its imprimatur on one approach to religious doctrine. Orthodox Judaism thereby becomes the official Jewish Church of New York State.

An Interfaith Analogy: A Hypothetical "Sabbath Feast" Statute

By way of illustration, consider an interfaith analogy. Most Christian sects consider Sunday to be a holy day of rest, meant to commemorate God's vacation after creating the universe. Judaism, however, considers Saturday to be that day of rest. Assume that Jews traditionally have a celebratory feast on Saturday after morning prayers and call it the "Sabbath feast."

An interfaith version of New York's Kosher Fraud Statutes might prohibit as fraudulent the publication of the label "Sabbath feast" (in a newspaper general invitation, for example) to describe a meal taking place on any day other than Sunday. Such a law would favor Christianity over Judaism, in violation of the Establishment Clause, by selecting and declaring theological truth as between competing visions. The law would accordingly inhibit Jews, and simultaneously aid Christians, in spreading their respective messages about the real meaning of "Sabbath."

It is perhaps the central objective of the Establishment Clause to prevent the government from weighing in on disputed questions of theology. The nature of religious differences is that they can be contentious and even deadly at times. The hope of those who crafted the words of the First Amendment Establishment Clause, and of those who have relied on that provision ever since, is that the government will remain neutral as between differing visions of religious truth.

Whether the competitors are Christianity and Judaism, or varying approaches to what is considered one religion, the government must not choose sides and call some of the competitors fraudulent. That is perhaps the essence of the Separation of Church and State.