Court: Court of Appeals for the Second Circuit; May 21, 2002; Federal Appellate Court
The term "kosher," traditionally associated with Jewish dietary laws (kashrut), has evolved into a broader synonym for correctness or legitimacy. Hebrew National, a prominent kosher food brand, claims to adhere to a higher authority in its marketing. In New York, the Department of Agriculture and Markets enforces laws against fraudulent kosher food sales. The case centers on an appeal involving Rabbi Luzer Weiss and other defendants against a summary judgment from the District Court, which found certain New York Agriculture and Markets Law provisions unconstitutional under the First Amendment's Establishment Clause. The plaintiffs, Commack Self-Service Kosher Meats, Inc. and its owners, argue that these laws, which define "kosher" based on orthodox Jewish standards, infringe on their rights by favoring Orthodox Judaism, denying non-Orthodox Jews access to kosher food, and lacking clarity, thus violating due process. The lower court ruled that the laws excessively entangle the state with religion and advance Orthodox practices, leading to the appeal’s affirmation.
The Yarmeisches received their first civil citation for violating New York's kosher fraud laws on July 10, 1986, after an inspection of their store revealed that veal spareribs labeled as "soaked and salted" did not contain added salt, indicating a violation. In response to the citation, the Yarmeisches asserted that they consistently soaked and salted their meats but did not formally contest the violation, opting instead to pay a $600 fine. A subsequent inspection on January 7, 1987, found that beef chuck side steaks labeled as "soaked and salted" also failed to meet kosher standards, as laboratory analysis showed no significant difference in salt content between the outer and inner meat. The Department claimed this indicated improper preparation according to orthodox Hebrew requirements, leading to allegations of violations under New York Agriculture and Markets Law sections 201-a(1) and 201-c(1). The Yarmeiches described their soaking and salting method in an April 29, 1987 letter and contended that their practices adhered to kosher guidelines, seeking clarification from the Department. The Department filed a civil complaint instead, resulting in an $800 fine for the 1987 violation. A further inspection in April 1988 led to the quarantine of lamb tongues, which the Department claimed were not properly soaked and salted. The Yarmeiches contested this, citing certification from their supervising rabbi, while the Department alleged that the tongues were not deveined according to Orthodox standards. The Yarmeiches assert that this charge remains unresolved, whereas the Department considers it closed. Another inspection occurred on February 22, 1998.
The Department notified the Yarmeisches that they violated New York Agriculture and Markets Law section 201-a(2) by selling poultry without the required labeling for kosher status. They were assessed an $11,100 civil penalty, which they disputed, claiming the poultry was not offered for sale at the time of inspection. The Department later withdrew the violation. In January 1996, the Yarmeisches filed a lawsuit against the Department in the U.S. District Court for the Eastern District of New York, amending their complaint in April. They argued that defining "kosher" as food prepared according to orthodox Hebrew religious requirements violated the Establishment Clause, and raised free exercise and equal protection claims against the laws’ implications. They also contended that the laws were unconstitutionally vague due to the lack of a definition for "orthodox Hebrew religious requirements," and claimed due process violations stemming from inadequate training of state inspectors, leading to arbitrary inspections. Additionally, they sought to prevent the Department from publicly disclosing alleged violations before prosecution. The Department moved for the court to abstain from the case, citing unresolved New York law regarding the definition of "kosher," but the court denied this motion, referencing longstanding interpretations equating "kosher" with orthodox requirements. The case examined whether the Yarmeisches misrepresented their products as kosher. A motion for preliminary injunctive relief by the Yarmeisches was denied in June 1998, but the parties agreed that the Yarmeisches would be notified of any violations before public release.
On March 1, 1999, intervenors filed for summary judgment on the initial six claims in the Yarmeisches’ complaint, targeting certain New York laws as unconstitutional. The Department responded with a motion for summary judgment on all claims on June 7, 1999, the same day the Yarmeisches submitted a cross-motion. On July 28, 2000, the district court ruled in favor of the Yarmeisches, declaring specific sections of New York's Agriculture Markets Law unconstitutional for violating the Establishment Clause. The court emphasized that the kosher fraud laws equate "kosher" with adherence to orthodox Hebrew religious requirements, rejecting the Department’s argument that the laws merely functioned as registration statutes.
The court applied the Lemon test from *Lemon v. Kurtzman*, concluding that the laws created excessive entanglement between the state and religion and improperly advanced religious practices. It found that enforcement necessitated reference to religious tenets not outlined in the laws, and that the laws required state involvement in monitoring compliance with religious dietary laws. Furthermore, the court noted that the laws' incorporation of Orthodox kosher standards symbolically united church and state, thus constituting an impermissible state advancement of religion. Consequently, the district court did not address other claims and permanently enjoined the Department from enforcing the unconstitutional laws. The appeal followed the entry of judgment on July 31, 2000. The origins of New York’s kosher fraud statutes date back to a 1915 legislative addition aimed at preventing fraud in the sale of kosher products, which currently falls under Article 17 of the Agriculture and Markets Law, defining "kosher" in terms of adherence to orthodox Hebrew requirements.
Sections 201-a, 201-b(1), 201-c, 201-e(2-a), 201-e(3-c), and 201-f of the New York Agricultural Markets Law outline specific regulations regarding the sale and labeling of kosher food products.
- **Section 201-a**: Criminalizes the fraudulent sale of food represented as kosher or kosher for Passover, classifying it as a class A misdemeanor, escalating to a class E felony if the retail value exceeds $5,000. It mandates clear labeling of kosher meat and poultry as "soaked and salted" or "not soaked and salted," requiring that such labels be prominently displayed. It also defines fresh meat and poultry as unprocessed except for salting and soaking, and requires sellers to retain records of the origin of kosher meat and poultry.
- **Section 201-b(1)**: Mirrors the provisions of section 201-a(1) but specifically pertains to food sold in hotels and restaurants.
- **Section 201-c**: Prohibits the willful misrepresentation of food as kosher or kosher-style and disallows alterations to kosher labels. It also prohibits the sale or possession of food products lacking their original slaughterhouse labels or those with fraudulently affixed labels.
- **Section 201-e(2-a)**: Requires that non-prepackaged kosher meat or poultry sold off-premises carry appropriate labels indicating whether they are "soaked and salted" or "not soaked and salted," along with the bill of sale.
- **Section 201-e(3-c)**: Requires slaughterhouses selling kosher products to maintain comprehensive records regarding the slaughter process, including supervision details and the number of animals slaughtered in accordance with orthodox requirements.
- **Section 201-f**: Details the requirements for kosher meat and poultry, stating that if meat is represented as kosher, it must be tagged with the date and time of slaughter. It mandates washing within 72 hours post-slaughter by an authorized individual. It also specifies that kosher poultry must be tagged at the slaughterhouse.
These sections collectively aim to ensure transparency and integrity in the sale of kosher food products, enforcing strict penalties for non-compliance.
The commissioner is tasked with establishing necessary rules and regulations for implementing kosher identification requirements for meat and poultry. Section 201-h prohibits misleading labeling of food products as parve or pareve if they do not meet Orthodox-Hebrew dietary standards. Additionally, section 26-a establishes a nine-member advisory board on kosher law enforcement, appointed by the commissioner, to provide guidance on policy related to kosher fraud laws and recommend legislative changes for further restrictions on kosher meat and food sales.
The excerpt further analyzes the constitutionality of these laws using the Lemon Test, which assesses whether a law (1) has a valid secular purpose, (2) neither advances nor inhibits religion, and (3) does not foster excessive state entanglement with religion. The challenged laws fail the Lemon Test as they both advance and inhibit religion. The excessive entanglement factor is particularly concerning, as it suggests that the laws discriminate in favor of Orthodox Hebrew views, require the state to endorse religious doctrine, and blur the lines between government and religious authority by appointing individuals based on religious criteria.
The Department contends that the laws in question do not excessively intertwine government with religion, asserting that the definition of "kosher" is universally understood. However, evidence indicates significant disagreement among Jewish authorities regarding the interpretation of kashrut. Samuel H. Dresner highlights that rabbinic interpretations vary across time and location, citing examples such as differing practices between Sephardic and Ashkenazic Jews concerning the consumption of rice and certain beef parts. The New Jersey Supreme Court previously invalidated kosher fraud laws, stating that there is no consensus among Jewish denominations on kosher standards. The ruling emphasized the substantial differences in interpretation of kashrut laws within Orthodox Judaism and between it and other branches like Conservative and Reform Judaism. The court concluded that the laws effectively favor Orthodox Judaism's interpretations, thus aligning the state with one sect in an internal religious debate, which is impermissible under the Establishment Clause. The Supreme Court has reinforced that the government cannot show preference for any particular sect or religion, as established in multiple cases, including County of Allegheny v. ACLU and Epperson v. Arkansas. The Establishment Clause mandates neutrality among religions, prohibiting the government from favoring one over another.
The challenged laws favor one branch of Judaism, causing excessive entanglement between the State and religion, violating the Establishment Clause. The Department of State argues that these laws merely implement trade standards and do not require a religious interpretation. However, to assert non-compliance with kosher requirements, the State must adopt an official position on those requirements, which necessitates either interpreting religious doctrine or relying on religious authorities, thus improperly engaging in religious matters.
The Yarmeisches requested detailed information on Orthodox Hebrew kosher food preparation requirements, prompting State officials to engage with Department representatives for clarification. Correspondence included requests for specifics about koshering processes, referencing Jewish legal texts such as the Shulhan Aruch and Yoreh Deah. Rabbi Rubin, a kosher enforcement director, advised on how to trace Jewish law origins, indicating that inquiries should specify the historical source of particular laws. The draft bill of particulars developed by the State outlined specific kosher laws regarding the removal of forbidden blood from animals, demonstrating the State's involvement in religious law interpretation.
The Yarmeisches' request for a bill of particulars highlighted an inherent issue: State authorities could not determine whether their meat conformed to kosher requirements without establishing what those requirements are, which would lead to excessive entanglement between the State and religious matters. The laws in question infringe upon the Establishment Clause by merging governmental and religious functions. Specifically, the existence of an Advisory Board under Section 26-a of the Agriculture and Markets Law, tasked with advising the Department on kosher law enforcement, poses a conflict. Although the Department claims the Board does not engage in enforcement activities, the broad powers granted to the Board—including advising on policy, recommending legislative changes, and conferring with the commissioner—indicate significant involvement in enforcement matters. The distinction between incidental entanglement and purposeful delegation based on religion is crucial. The Board's mandate to advise on Orthodox Jewish dietary laws, coupled with the fact that all its members are Orthodox rabbis, demonstrates that New York's delegation of authority is based on religious principles rather than neutral civic criteria. The potential for intimate involvement of religious leaders in interpreting kosher standards underscores this point, rendering the laws problematic under the Establishment Clause, regardless of whether Board membership is formally restricted to Orthodox Jews.
The challenged laws create a combined exercise of civic and religious authority, violating the Establishment Clause's principle of preventing government and religion from intruding on each other. Specifically, section 201-f(1)(b) mandates that meat labeled as kosher must be washed by an authorized orthodox rabbi, compelling kosher vendors to employ a rabbi from a particular Jewish sect. This provision exemplifies excessive government-religion entanglement, leading to the conclusion that the laws infringe upon the Establishment Clause.
Furthermore, the laws fail the second prong of the Lemon test, which requires that a law must not advance or inhibit religion. The laws primarily advance Orthodox Judaism by favoring its dietary restrictions while effectively prohibiting other branches from utilizing the kosher label according to their beliefs. This preferential treatment constitutes an impermissible advancement of religion. In contrast to previous Supreme Court decisions, which involved indirect benefits to religion, the challenged laws explicitly endorse one interpretation of religious dietary laws, leading to a clear violation of the Establishment Clause.
New York's kosher fraud laws are found to impede religious freedom by defining "kosher" in a manner that aligns solely with Orthodox Judaism, thereby excluding other branches of Judaism from utilizing the kosher label as per their own dietary beliefs. This restriction forces kosher food vendors to adhere to definitions that do not reflect their religious practices, constituting an impermissible inhibition of religion. Additionally, the intertwining of governmental and religious authority through the establishment of an Advisory Board creates a joint exercise of authority, which, by its mere appearance, could be interpreted as endorsing particular religious views, thus violating the Establishment Clause. The laws effectively endorse an Orthodox interpretation of kosher, symbolically granting governmental approval to that perspective while disapproving of others.
Regarding the secular purpose prong of the Lemon test, the parties agree that the laws were enacted to protect consumers from fraud in the kosher food market, a valid state interest. This concern extends beyond Jewish consumers, who now represent less than 30% of kosher food buyers, including Muslims and others with specific dietary needs. The state thus has a legitimate interest in safeguarding all consumers against fraud in the sale of kosher products.
The challenged New York kosher fraud laws are deemed unconstitutional as they do not effectively serve their stated secular purpose, which is already addressed by existing general fraud laws. The laws can be met through less restrictive means, such as requiring vendors to clearly state the basis for labeling food as kosher. Specifically, section 199-a(l) penalizes misbranding by holding vendors accountable for false representations regarding kosher status. The laws foster excessive state entanglement with religion and produce effects that both advance and inhibit religion, violating the Establishment Clause. The judgment of the district court is affirmed, and the remaining arguments by the plaintiffs are not addressed. Key intervenors include various Jewish organizations and individuals. The New York Agriculture and Markets Law imposes criminal and civil penalties for violations, classifying them as misdemeanors or felonies based on the retail value of the food. The Department has the authority to regulate and enforce kosher law provisions, and the attorney general can pursue civil penalties. The core of the kosher fraud laws prohibits the sale of food misrepresented as kosher or prepared under Orthodox Hebrew requirements.
After slaughter, meat must undergo a koshering process that involves soaking and salting to remove blood, as mandated by N.Y. Agric. Mkts. Law § 201-a(1). In the case of Ran-Dav’s County Kosher, Inc. v. State of New Jersey, 129 N.J. 141 (1992), this requirement is highlighted. On December 9, 1996, Magistrate Judge E. Thomas Boyle approved the intervenors' motion for permissive intervention under Federal Rule of Civil Procedure 24(b)(2), allowing Hon. Sheldon Silver to intervene in his individual capacity. New York Agriculture Markets Law § 201-j permits the public disclosure of violations after notifying the violator. Several provisions within the law mandate the identification of entities certifying food products as kosher, including N.Y. Agric. Mkts. Law §§ 201-g, 201-e(3), and 201-i, and require proper labeling of kosher products under §§ 201-e(1) and (2). The Yarmeisches did not contest these provisions, which are not part of the current appeal. The plaintiffs argue for strict scrutiny to assess the constitutionality of these laws, citing Larson v. Valente, while the defendants advocate for the standard from United States v. Salerno, which places the burden on plaintiffs to demonstrate that no circumstances could uphold the statute. Ultimately, the court finds that the laws fail the constitutional test, regardless of the standards applied, and notes uncertainty regarding the delivery of a final bill of particulars in the appeal record.
