Friday, August 7, 2009

Who Defines Kosher? Not The State

Over at Religion Clause, Professor Friedman posted a story on a lawsuit filed by a Conservative rabbi challenging the constitutionality of Georgia's Kosher Food Labeling Act. What is the basis of this challenge? That the law provides food can only bear a kosher label if it meets "Orthodox Hebrew religious rules and requirements."

In other words the State of Georgia has chosen to use an "Orthodox" definition of kashrut. This poses a significant Establishment Clause problem. Why is the State taking a particular religious definition of kashrut? Forget Orthodox vis a vis Conservative for a minute. What about various strains of Orthodoxy? Is Hebrew National not kosher because it has a Triangle K and not an OU?

While the idea of the government protecting the kosher consumer from fraud is commendable, over the years a number of similar laws in New York, Maryland and New Jersey have been struck down by the courts for this very reason. As the New Jersey Supreme Court said, requiring businesses to comply with a particular Jewish religious standard "inextricably" entangled Jewish law with secular law. Think about it. When challenged, the state has no choice but to determine what the true definition of kashrut is. It must choose between Rabbi A's definition and Rabbi B's definition. And that is something the state should never be put in a position of doing.

The solution, in my opinion?

Kosher food laws should not be based on any one particular religious standard to determine whether it's kosher or not, especially because there is no standard universally agreed upon within the Jewish community. Instead, kosher fraud laws should rely on full disclosure made by the seller. A kosher fraud law should state that anyone selling kosher food is required to disclose the basis upon which that claim is made. In other words, if Butcher Z says I am selling kosher meat then he must produce some documentation from Rabbi A attesting to its kashrut. If a consumer trusts Rabbi A then he will buy from Butcher Z. If not, armed with all the facts and with full disclosure, he can go across the street to Butcher X who discloses that his products are under the supervision of Rabbi B.

In this case the state's only involvement would be to see if the food sold is in compliance with that disclosure statement, not whether it is in compliance with "Orthodox Hebrew law." This solution still allows the state to fulfill its goal of protecting consumers from fraud while not entangling it in religious doctrine and violating the Establishment Clause in the process.

1 comment:

  1. It would be like the State deciding between competing claimants which of several of them was really a member of the group. Imagine the Christian denominations having that battle!!

    But then, we do have to look out for these things. Remember we discussed the case, I think from Iliinois, a couple of years ago, in which a court dclared invalid that part of a will which gave the gift only upon condition that the grandchildren married Jews? That court claimed that to enforce that provision would be an inaapropriate judicial interfence and entanglement in religion. It was a bad decision because it frustrated the important policy of enforcing the decedent's wishes.

    Your idea of giving full information is a sort of 'truth in labeling' idea, which the state could enforce in instances of material false statement, without becoming involved in the truth or accuracy of religious claims. It would be the same sort of enforcement which we now have from the FDA regarding contents. Religion is out of the picture: all that matters is that whatever information the seller gives be accurate.