- The Washington Times - Wednesday, February 19, 2003

The Supreme Court is considering an unusual church vs. state appeal this week that could govern whether shoppers can place their faith in kosher labels on food.
The case focuses on a New York kosher labeling law that made some violations felonies. Federal courts overturned the law on grounds the Constitution doesn't permit governments to police adherence to religious law by an industry that also must "answer to a higher authority."
Justices are to decide Friday whether to hear an appeal by political and religious leaders, led by Assembly Speaker Sheldon Silver, seeking to salvage measures intended to assure the integrity of 430 different "kashrut" labels, vouching that food is prepared according to dietary laws of Orthodox Judaism.
"How can you seek to impose a fine on somebody if you have rabbis on both sides of the issue?" said Robert J. Dinerstein, the lawyer who got the kosher sections of the state Agriculture and Markets Law overturned. Enforcement of the law continues under a stay while the appeal continues.
After a few skirmishes, and civil fines of $300 and $600 over issues involving whether products were "soaked and salted," the client, Commack Kosher Meats on Long Island, was ordered to pay $11,100 for "offering for sale poultry as kosher without the required markings on labels 'soaked and salted' or 'not soaked and salted.'"
Other New York kosher cases hinged on whether tongues were deveined.
Menachem Lubinsky, publisher of the trade paper Kosher Today, said the Commack case is important because its outcome will affect a multibillion industry that depends on belief in labels authorized by the person who supervises preparation of the food.
"It's of great interest, because there are many other states that model after New York state laws. Should the Supreme Court knock it out, it would knock all those other laws out," Mr. Lubinsky said.
He said $6.75 billion of the $500-billion-a-year food industry involves sales to people who always buy kosher, because it is kosher. But $150 billion worth of food is certified kosher, including many snacks and beverages, and 28 percent of the population intentionally purchases kosher food at some point, he said. Reasons include lactose intolerance, aversion to pork and a belief by some that kosher food is purer.
"I would hope they take the case. It affects the laws in 17 jurisdictions and raises serious questions under the Establishment Clause. The court asked for a response, and that's a good sign," said Nathan Lewin, attorney for Mr. Silver's group.
He said the fact that New York inspectors are not always Jewish proves the law is not imposing a religious test.
A District Court judge in New York ruled that the New York statutes violate the First Amendment ban on establishment of religion "because they excessively entangle the state of New York with religion and impermissibly advance Orthodox Judaism." The 2nd U.S. Circuit Court of Appeals agreed in the decision on appeal to the high court.
In 1995, the 4th U.S. Circuit Court of Appeals upheld a ruling that Baltimore County's Bureau of Kosher Meat and Food Control violated the First Amendment despite its intent to ferret out fraud. That case involved a $400 fine to George Barghout for mingling kosher and non-kosher hot dogs on a rotisserie at his Yoghurt Plus restaurant.
The Supreme Court has not reviewed the issue. In 1972, a lawsuit did not halt Miami Beach's practice of using inspectors to ensure kosher food meets the test.
Many Orthodox Jews believe Jewish law requires adherents to rely on a rabbi to decide what is kosher. The Muslim food code is called halal, and few U.S. jurisdictions help enforce it, although an Illinois law carrying fines of as much as $1,000 for mislabeling halal went into force Jan. 1, 2002.
Much of the food sold in supermarkets carries a kosher label, often a K concealed within a code recognizable to those who seek it.
Of the estimated 430 symbols, the most universal are circle U by the Orthodox Union; circle K by Organized Kashrut, K of K from Teaneck, N.J.; and star K from Baltimore.


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