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By Eric J. Greenberg and Stewart Ain
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CALL IT a case of penny wise and kosher pound foolish. Fearful that a federal judge would almost certainly
strike down New York State’s kosher food enforcement laws as unconstitutional, state officials for years
tried to negotiate an out-of-court settlement with two Long Island butchers challenging the century-old
statutes.
But in the end, state officials chose not to settle and pay perhaps hundreds of thousands of dollars in legal
damages.
“It all came down to money,” said one source close to the case. “Initially the state agreed to pay legal
fees plus damages, but in the end it reneged.”
As a result, New York’s kosher laws are canceled and kosher consumers are in limbo.
Brooklyn Federal Court Judge Nina Gershon overturned the laws last
week and imposed an injunction on the state’s ability to enforce them.
Now, state government officials — joined by several Orthodox groups — find themselves in the
unenviable position of appealing the decision by Gershon, who declared they violated the First
Amendment by “endorsing and advancing religion.”
Religion and legal experts agree that New York ultimately will have to rewrite the kosher laws to
eliminate any religious standards, thus watering them down as merely consumer protection legislation.
“There’s no question [the ruling] is going to be affirmed by the 2nd Circuit Court” on appeal, said Marc
Stern, legal director of the American Jewish Congress. “If [state lawmakers] want to have a kosher food
law, they are going to have to substantially revise it.”
Stern and others suggest that state officials made a critical mistake by giving Gershon the opportunity to
declare the laws unconstitutional. By doing so, they have virtually killed the state Legislature’s chances of
drafting new kosher legislation requiring Jewish religious standards.
“They would have been better off if they had not had a formal decision of unconstitutionality,” Stern said.
“This genie is not going to be put in back in the bottle so easy.”
Parties involved in the settlement efforts said the court barred them from discussing the talks.
The lawsuit was filed in 1996 by Commack Self-Service Kosher Meats after it was slapped with five
kosher law violations over six years by state inspectors.
Sources close to the case said the state was so concerned about the challenge that it agreed to a
four-paragraph stipulation on the interpretation of the kosher laws. The stipulation said Orthodox kosher
laws would not be the basis for the law and that the state could not question a rabbi’s assertion that a
product was kosher.
Sheldon Silver, the Orthodox state Assembly speaker who joined the suit supporting the state, seemed to
concede this week that while New York will go through the motions of appealing, a new solution will be
necessary.
“Even if we don’t win on appeal, I’m fairly confident we can get some clarifying language and direction as to what is permissible and what isn’t,” said the Lower East Side lawmaker.
A spokesman for state Attorney General Eliot Spitzer, who is defending the laws, said Tuesday an
appeal would be filed as soon as possible.
“In the interim we will seek a stay of [Gershon’s ] decision within the next week so that the current
protections remain in place,” said Scott Brown.
As to rewriting the laws, Brown said that is the domain of the state Legislature.
Meanwhile, the state seems to have two ready options.
One is to look west and duplicate New Jersey’s kosher laws, which had to be rewritten six years ago
after being declared unconstitutional for violating church-state separation in 1993.
New Jersey now requires kosher food vendors to disclose their definition of kosher by posting signs in
their stores and filing copies with the state Consumer Affairs Division.
Unlike the old regulations, no standard of kosher is established by the state. Consumers must read the
merchant’s sign and decide if they find the standards acceptable. The state can inspect stores to ensure
they conform with their posted kosher procedures. Stores that don’t can be cited for violating the
Consumer Fraud Act.
“I think its marvelous. It’s the best thing,” Rabbi Jeffrey Rappoport, editor in chief of the Kosher Nexus
newsletter of the Teaneck, N.J.-based Union for Traditional Judaism said of the laws. “It puts the onus of
the responsibility on the consumer, where it really does
Eric J. Greenberg and Stewart Ain are staff writers with the New York Jewish Week. Comment by clicking here.
