New York’s kosher labeling and marketing statute does not violate the establishment and free exercise clauses of the First Amendment, the U.S. Court of Appeals for the Second Circuit ruled yesterday.
A three-judge panel also concluded that the law is not unconstitutionally vague, rejecting a claim by a Long Island delicatessen and butcher shop specializing in kosher foods.
Commack Kosher Deli and Market, which operates under the supervision of Rabbi William Berman, a rabbi of a Conservative synagogue, has been fighting aspects of the law since 1996.
In 2000, Eastern District Judge Nina Gershon (See Profile) struck down portions of the law regulating the labeling of kosher foods. The Legislature amended it in the Kosher Law Protection Act of 2004, New York Agriculture and Markets Law §§201-a-201-d.
Commack brought a challenge to the amended law in 2008, claiming its inspection provisions thrust the state into a religious role by determining “what is or is not kosher.”
But Gershon rejected the challenge in 2011 (NYLJ, Aug. 8, 2011), and Commack appealed to the Second Circuit, where Judges John Walker (See Profile), Gerard Lynch (See Profile) and Christopher Droney heard oral arguments on Feb. 27 in Commack Self-Service Kosher Meats v. Hooker, 11-3517-cv.
Yesterday, the circuit affirmed the lower court in a 27-page opinion by Droney.
In the initial litigation, Commack challenged only those portions of the law which define “kosher as prepared in accordance with orthodox Hebrew religious requirements, require adherence to those requirements, or are integral to the state’s enforcement of such requirements.”
Judge Gershon found that version of the law violated the Establishment Clause because it required the state to apply Orthodox Jewish dietary laws, or kashrut.
However, the 2004 amendments required only marketers of “kosher” food to identify the individuals who certified it as such, did not define kosher and did not allow state inspectors to determine what was kosher.
So last year, Gershon said the amended version passed muster because it was now “purely a labeling and disclosure law” and “there is no determination by the state with regard to whether a product is kosher or whether a product must be produced under rabbinical supervision to be kosher.”
In yesterday’s opinion, Droney wrote, “Although consuming kosher food products may have begun as a purely religious practice, sales of kosher food have grown to the point that Jewish consumers reportedly make up less than thirty percent of the consumers of kosher food.”
He cited Curran v. Lee, 484 F.2d 1348 (1973), where the Second Circuit held that aid by the City of New Haven, Conn., to a St. Patrick’s Day parade was found not to be an establishment of religion because, even while honoring St. Patrick “may be rooted in religious belief, a parade named after him is not necessarily religious and has possibly ‘evolved into a secular celebration by Irish-Americans and their friends.’”
Here, Droney said, “the legislative history is clear that the labeling law has the secular purpose of protecting against fraud by informing a consumer that a particular seller believes a product is kosher.”
“Unlike its prior version, the Kosher Act does not adopt a definition, interpretation or standard for the term ‘kosher,’ and the plaintiffs have not alleged that the Act has been implemented in a discriminatory manner,” Droney said. “Therefore, an objective observer acquainted with the text, legislative history and implementation of the statute would conclude that the purpose of the statute was secular.”
The court disagreed with Commack’s claims that the law impermissibly entangles the state with religion.
Unlike the prior act, Droney wrote, “there is no advisory board to counsel or consult on matters of kosher enforcement,” and the “kosher certification form” required by §201-c(3) “can only be interpreted as authorizing inspectors to assess compliance with the accuracy of the information filed with the Department of Agriculture and the Commission, not to engage in a substantive evaluation of whether a food item is or is not ‘kosher.’”
For many of the same reasons, Droney said, the court was rejecting the plaintiffs’ claims that the Kosher Act has the primary effect of both promoting and inhibiting religion.
“The Kosher Act does not endorse a particular religious denomination or sect, it merely requires a seller of kosher products to label those products held out as kosher,” he said. “Here, applying a label to a food product to inform consumers that the product has been deemed ‘kosher’ by the seller or producer merely happens to coincide with Orthodox Jewish practice and does not evidence a specific endorsement or impairment of any religious practice or viewpoint.”
Finally, Droney said the law does not violate the free exercise clause because it is “neutral, generally applicable, minimally burdensome, and has a rational basis.”
Commack solo Robert Dinerstein represented the delicatessen.
Assistant Solicitor General Brian Sutherland argued for the state.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.