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Second Circuit Upholds NY's Kosher Law

By Robyn Hagan Cain on May 10, 2012 | Last updated on March 21, 2019

New York’s Kosher Law Protection Act is constitutional, according to a new Second Circuit Court of Appeals opinion.

The New York-based court ruled on Thursday that the Kosher Law does not infringe upon First Amendment religious freedoms, according to Bloomberg.

The plaintiffs, Commack Self-Service Kosher Meats, have sued multiple times to block New York’s kosher food laws.

Commack sued in 1996 to block the law (a prior version of the Kosher Act) that imposed inspection and labeling requirements on food marketed as kosher, alleging that those statutes violated the Establishment and Free Exercise Clauses of the First Amendment, as well as the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In 2002, the Second Circuit Court of Appeals agreed that the challenged portions of the law facially violated the Establishment Clause because that version of the Kosher Act required state officials to apply religious doctrine in order to determine whether the food was kosher.

Following Second Circuit's decision, the New York State Legislature passed the Kosher Law Protection Act of 2004. The new Kosher Act imposed requirements on sellers and manufacturers that market their food products as "kosher" to label those foods as kosher and to identify the individuals certifying their kosher nature, but did not define kosher or authorize state inspectors to determine the kosher nature of the products.

Commack filed the current suit in 2008, challenging the constitutionality of the new Kosher Act, and alleging:

  • The law discriminated against non-Orthodox Jews.
  • The labeling requirements of the Kosher Act violate the Establishment Clause because there is no halachic (Jewish Law) requirement that to be considered kosher all food must bear a label stating it is kosher, (and certain non-Orthodox Jews wish to market and purchase particular kosher foods without a kosher label or designation).
  • The statutes discriminate against non-Orthodox Jews and some kosher food purveyors.
  • The inspection provision that grants the Department of Agriculture the authority to inspect all food establishments for compliance with the Kosher Act directly or indirectly involves an analysis of the acceptability or reliability of the "kosher nature" of the food that is sold.
  • The Act violates the Free Exercise Clause because it constitutes an impermissible regulation of a religious practice -- whether a product is kosher -- and was not the least restrictive means of preventing fraud.
  • The language of the Kosher Act is unconstitutionally vague.
  • The law impermissibly gave the state a supervisory role over what is kosher.

The appellate court disagreed. Second Circuit Judge Christopher Droney, who wrote the opinion, concluded, "The Kosher Act does not entangle the state with religion because it does not require the state to enforce laws based on religious doctrine or to inquire into the religious content or religious nature of the products sold."

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