Food Law

The Establishment Clause and the State Regulation of Religious Food - Commack Self-Service Kosher Meats, Inc. v. Rubin, 106 F.Supp.2d 445 (E.D.N.Y. 2000)

This case poses the difficult question: what is the state's role in the regulation of kosher food?  The United States Supreme Court found that the state can regulate the secular side of religious practices in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990) - upholding a state sanctions for taking drugs as part of a religious practice.  However, such statutes must be neutral and be aimed at the secular conduct itself not the religious practice.  Thus a city ordinance regulating the ritual sacrifice of domestic animals was struck down in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) because it was not a neutral regulation of abattoirs but was specifically at religious practices.  In this case, plaintiffs, who run a kosher butcher shop, are contesting the state's statutory scheme for regulating kosher food.  There is no allegation by the state that the regulated food was insanitary, only that it was improperly branded.  While the contested laws are part of the sanitation code, they are consumer fraud laws intended to prevent non-kosher food from being sold as kosher and do not address sanitary concerns.  Had this been a question of unfit food, it is clear that the state would have nearly unlimited authority to prevent its sale without regard to religious freedom issues.

The plaintiffs concede that the state has the right to regulate consumer fraud in the sale of religious items.  As an example, the court postulated that the state could demand that items sold as "approved by the Vatican" be shown to have such approval.  This would be a simple matter to determine, and would not require the state to become entangled in religious activities as prohibited by Lemon v. Kurtzman 403 U.S. 602 (1971).  The plaintiffs argue that the challenged laws step beyond merely determining whether the food has been certified kosher by an appropriate authority and seek to define what is kosher.  In particular, plaintiffs argue that there are different interpretations of kosher and that to base the state regulation on Orthodox standards for kosher deprives non-Orthodox customers of their religious freedom.  The named defendant is the Director of the Kosher Law Enforcement Division of the New York State Department of Agriculture and Markets, who is a Rabbi.  While there is no bar to persons with religious training holding secular government offices, putting a Rabbi in charge of enforcing what are claimed to be secular fraud rules on kosher food clearly put the state at a disadvantage in arguing that these laws did not involve the state in religious decisionmaking.

The state's position is that there is substantial case precedent supporting the use of its definition of kosher and its enforcement of Orthodox standards in defining kosher.  These cases stretch back more than 60 years.  More recently, however, the New Jersey Supreme Court rejected this precedent in Ran-Dav's County Kosher, Inc. v. New Jersey, 129 N.J. 141, 608 A.2d 1353 (1992) in striking down comparable laws in New Jersey.  Plaintiffs noted that the New York Attorney General, in an amicus brief filed in the Ran Dav's case, stated that New York laws: ". . . "define kosher in terms of orthodox Jewish requirements."  Defendant claims that, despite the authoritative construction of the statutes by the New York courts, the Department of Agriculture and Markets no longer interprets the word "kosher" to mean "in accordance with orthodox Hebrew religious requirements." Rather, defendant argues that the Challenged Laws speak in the disjunctive, in that they refer to products represented as "kosher" or as prepared "in accordance with orthodox Hebrew religious requirements ." Defendant in this suit claims that it now ". . . recognizes that there is not a uniform consensus regarding what constitutes Kosher, and it is for this reason, among others, that defendant does not enforce the Law according to any particular religious standard."  Based on its claimed change in interpretation, the defendant argues the court should defer to the agency's determination that it is not violating the Establishment clause.  The Court rejects this attempt to trigger Chevon deference (Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., et al., 467 U.S. 837 (1984)), arguing that the agency cannot undo the decades of construction of the statute by the state courts. 

Having determined to review the constitutional status of the challenges laws, the court applies the three prong Lemon test: Lemon requires a challenged law (1) to have a secular purpose, (2) to have a primary effect that neither advances nor inhibits religion, and (3) not to foster excessive state entanglement with religion.  Since the purpose of the laws is the prevention of consumer fraud, the first prong of the test is satisfied.  The second prong is more problematic because the laws clearly enforce the standards of a specific religion, even imposing criminal penalties for their violation.  The third prong is equally troublesome because the state is forced to rely on a board of religious advisors to determine what should qualify as kosher.  In specific, the plaintiffs represented to the State that their food was approved under their chosen religious authority.  This "good faith" representation was rejected because it conflicted with the state's standards for kosher food handling.  For these reasons the court ruled that the New York kosher food handling laws were unconstitutional as, on their face, violating the Establishment Clause of the first amendment.

This is a detailed and well-reasoned opinion, with a good review of the applicable precedent.  Given the importance of this issue, it is very likely to be reviewed by the appeals court and perhaps the United States Supreme Court.  In a time when both political parties are stressing the role of private religious organizations in governmental aid programs, this case has broader significance than the certification of kosher food.