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August 30, 2015 / 15 Elul, 5775
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Unfortunate Kosher Food Decision

As The Jewish Press reported last week, a three judge panel of the United States Court of Appeals for the Second Circuit sitting in Manhattan has thrown out provisions of New York’s Agricultural and Markets Law which since 1915 has prohibited the fraudulent selling of food as kosher. The court’s reasoning was essentially that inasmuch as the definition of “kosher” was defined in the law as meeting “Orthodox Hebrew requirements,” enforcement by state authorities would cause “excessive entanglement” between government and religion in violation of the First Amendment.

It is a sad state of affairs that as it now stands, anyone can sell even pork meat as kosher and there isn’t anything anyone can do about it. The irony of the court’s decision is that it belies the reality of what enforcement really entailed. While it is true that the origin of the standards were religious legal codes, state inspectors followed a totally secular protocol. That is, there was never any day-to-day resort to the ancient tomes or to rabbinic authority, only to a long-settled menu of objective things to look for.

Nor is there any real merit to the court’s concern that the definition of kosher in terms of “Orthodox Hebrew requirements” elevates Orthodox standards over non-Orthodox standards, again involving the state in doctrinal matters. If the word “kosher” standing alone is not to be a misleading standard, it must imply the highest standard of all groups. That is, an Orthodox Jew is misled by the designation “kosher” if Orthodox standards are not met. On the other hand, a Conservative Jew is not misled if Orthodox standards are met. Once again at bottom this is a practical, rather than a religious issue.

Attorneys involved in the case say that an attempt will be made to get the full court of appeals to reconsider the decision of the three judges. Failing that, an appeal to the United States Supreme Court is likely. We would hope that ultimately, there will be a restoration of protections for the kosher consumer. It seems inconceivable that because of a wooden, strained view of church-state separation, from now on commercial opportunists can with impunity trick kosher consumers into paying premium prices for something that is falsely labelled as such.

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