Judge Strikes Down State’s Kosher Laws

Declaring that New York State’s kosher laws excessively entangle government with religion, a Brooklyn federal judge has struck down the 118-year-old statutes as unconstitutional.

Orthodox kosher law advocates immediately said they would appeal the July 28 decision by U.S. Eastern District Court Judge Nina Gershon, who ruled in favor of a Commack, L.I., butcher whose 1996 lawsuit claimed that the state’s kosher laws violated church-state separation.

The ruling marks the latest in a string of legal losses for kosher food laws across the country, including in New Jersey and Maryland.

Gershon found that New York’s kosher laws violated the First Amendment by "endorsing and advancing religion."

"The entanglements involved here between religion and the State are not only excessive in themselves, but they have the unconstitutional effect of endorsing and advancing religion," she wrote in a 27-page decision obtained by The Jewish Week.

Gershon also ordered a permanent injunction barring the state’s Department of Agriculture and Markets from enforcing the kosher laws.

Gov. George Pataki, told about the ruling Tuesday night as he left the floor of the Republican National Convention in Philadelphia, said: "It’s a shocking decision, and we’ll do everything in our power to make sure that these laws that are so important to all New Yorkers are able to continue."

A spokesman for Brian Yarmeisch, co-owner of Commack Self-Service Kosher Meats, said, "We’re thrilled with the results."

But attorney Nathan Lewin, who represents several national Orthodox groups, said the judge was "clearly wrong" and vowed an appeal to the 2nd Circuit Court of Appeals.

Lewin, in an interview with The Jewish Week Tuesday night, argued that the kosher laws are not an entanglement with religion but "simply protection against consumer fraud in the area of religion."

"There’s nothing wrong with protecting consumers against being defrauded, whether it be over kosher food or anything else," said Lewin, an Orthodox attorney who is representing the Orthodox Union, the nation’s largest kosher certification agency, Agudath Israel of America, the National Council of Young Israel, and state Assembly Speaker Sheldon Silver.

Silver, an Orthodox Jew and one of the state’s most powerful Democrats, said Tuesday he would seriously eye an appeal.

"My initial reaction is there is a fine line between the establishment of religion and the accommodation of religion," said the Lower East Side lawmaker. "The state has a definite interest in protecting consumers. I believe the laws of the state are designed to accommodate religion. If some product is sold as kosher, the state has an interest in being able to know that the item is kosher."

Rabbi Jerome Epstein, executive vice president of the United Synagogue of Conservative Judaism, said the state must realize that with freedom of religion there are various ways of observing Judaism. "I think the court has really acted very appropriately here and basically said that any individual who is a rabbinic authority should be able to provide certification," he said.

Nathan Diament, OU’s Washington legislative expert, said Gershon’s ruling was disappointing but not surprising.

"She pretty much telegraphed where she was headed," Diament said. "It is also following the pattern of the New Jersey Supreme Court," which struck down that state’s kosher laws as unconstitutional in July 1992.

Diament said the ruling means "the kosher food consumer is left to rely exclusively on the private sector, whether it be the OU or other kosher food certification agencies, to try and inform them what’s kosher and what’s not."

Lewin said it was not clear this week if the injunction against the state Agriculture Department from enforcing the laws had taken effect. He said once the injunction is delivered to the parties, "People can go out and sell ham as kosher." But Lewin added he would quickly ask the court for a stay, pending appeal.

"The effect is that the kosher consumers of New York may tremble about the fact that right now, the law that protects them is certainly under a cloud," he said.

Yarmeisch filed the original lawsuit in January 1996. He claimed the state’s kosher laws are based on "Orthodox Hebrew religious requirements," which discriminate against his store. Commack Self-Service Kosher Meats is under the supervision of a Conservative rabbi.

The store was issued violations when packages of ground turkey stored in a walk-in freezer did not have labels saying they had been soaked and salted: actions required by Orthodox kosher law.

During oral arguments before Gershon in October 1999, Assistant Attorney General Michael Siller, in defending the kosher laws, told the judge that "Everyone recognizes that Orthodox is the standard by which it all starts. …" Gershon then asked Lewin how he would feel about a statute that said kosher means in accordance with Conservative Jewish standards.

"I think the Legislature would be, quite frankly, not reflecting what the community believes," Lewin responded. "Here, the Legislature and the New York courts over all these years have said the word kosher means by Orthodox standards."

But Yarmeisch’s attorney, Robert Dinerstein of Commack, argued that such standards are "illusory: it is only as real as the rabbi you follow." He noted that the state issued a violation to a kosher store for selling nonkosher wine that would be kosher "according to Conservative standards.

"We’re showing an impermissible partiality for the Orthodox tradition if this court allows [to stand] a statute which has been found by this court … to establish Orthodoxy as the only acceptable standard of kashrut in the State of New York," Dinerstein argued.

Diament said, "There has to be some kind of mechanism where the state has to be able to protect kosher food consumers," he said. "If somebody walks into a store that says it sells kosher food, we must be able to make sure it is indeed kosher food."

Staff writer Stewart Ain contributed to this report.