Thursday, May 10, 2012

Second Circuit Upholds NY's Kosher Law

Historic labelNew York has had kosher fraud or kosher labeling laws since 1915. 

The present statute, the Kosher Law Protection Act of 2004 essentially provides:

  1. that any food establishment that sells or offers for sale food prepared on its premises or under its control that is represented as kosher post a kosher certification form on the premises;
  2. that any individual packaging a product which is sold or offered for sale as “kosher” or “kosher for passover” label these products as such;
  3. that any person selling both kosher and non-kosher products post a window sign indicating that both kosher and non-kosher products are sold there;
  4. and that any individual certifying a food product as kosher file his or her identifying information with the Department of Agriculture, and if that individual is certifying non-prepackaged food as kosher, he or she must also file a statement of his or her qualifications for providing such certification.
This 2004 revision is the result of previous litigation in which the precedessor statute was declared unconstitutional by the Second Circuit as violating the Establishment Clause.  Applying Lemon, the Second Circuit had found that the law caused excessive entanglement and both advancing and inhibiting religion.

However, in today's opinion in Commack Self-Service Kosher Meats, Inc. v. Hooker, the Second Circuit upheld the 2004 Kosher Protection Act, affirming the district judge.  The plaintiffs, Commack Self-Service Kosher Meats - - - who had also instigated the previous litigation - - - argued that the 2004 Act violated both the Establishment Clause and the Free Exercise Clause.

The Second Circuit applied the well-known Lemon test - - - from Lemon v. Kurtzman - - - and repeatedly stressed the fact that "kosher food" is not primarily a religious commodity.  Moreover, in deciding the "secular purpose" prong, the Second Circuit found it important that unlike the prior version, the 2004  Kosher Act does not adopt a definition, interpretation or standard for the term “kosher.”  As for endorsement, again, the Second Circuit distinguished the prior Act: there is no preference in the 2004 Act for one sacred text over another; it only requires labeling. 

The panel also rejected the Free Exercise claim.  The plaintiffs argued that the labeling requirements were excessive and burdened the free exercise of their non-Orthodox religion.  The court, however, found that the law was a neutral one of general applicability and the state's interest in preventing fraud is served by the statute.

Thus, it seems that the state learned from its earlier experience with the Kosher Law to craft a statute that may seem religious, but survives First Amendment challenges under the religion clauses.

[image: historic wine label via]

First Amendment, Opinion Analysis, Recent Cases, Religion | Permalink

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How is a statute that provides labeling and other requirements for a product defined by its religious nature "secular" in purpose? As compared to a law designed to prevent fraud generally, or to prevent fraud in food sales generally? Is such a law neutral towards religion when it does not protect sales of foods relevant to the dietary rules of other religions? Would a reasonable non-adherent, familiar with the history and context of this statute, regard it as an endorsement of Judaism, as opposed to all other religions that have dietary restrictive rules? Professors of constitutional law may want to pose these questions to their students in connection with the Second Circuit's decision during their study of the religion clauses.

Posted by: Jeffrey G. Purvis | May 11, 2012 1:34:40 PM

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