Recently the Second Circuit threw out a challenge to New York’s Kosher Act of 2004 in a case entitled Commack Self-Service Kosher Meats, Inc. v. Hooker, 11-3517-cv (2d Cir. 5/10/12). Plaintiffs challenged New York’s Kosher Law Protection Act of 2004 as violating the Establishment and Free Exercise Clauses of the First Amendment. They also argued that it was unconstitutionally vague. The Second Circuit rejected plaintiffs’ contentions out of hand and affirmed the lower court’s judgment in all respects.
The first named plaintiff is a delicatessen and butcher shop. It operates under the kosher supervision of a Conservative Jewish rabbi. Approximately sixteen years ago, plaintiffs sued in U.S. District Court for the Eastern District of New York, challenging the constitutionality of the preceding Kosher Act. The previous Act imposed inspection and labeling requirements on food identified as “kosher”. Plaintiffs claimed that the statute violated the “religious freedom” provisions of the First Amendment a/k/a the Establishment and “Free Exercise” Clauses. They also claimed violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The plaintiffs only challenged the portions of the law which defined kosher food as food prepared in accordance with Orthodox Jewish requirements. In 2000, the district court granted plaintiffs’ motion for summary judgment because the Kosher Act as it was then written required New York State officials to apply religious doctrine, i.e. Orthodox Jewish standards of kashrut, to determine if food was kosher.
On the heels of this decision, the New York State Legislature passed the Kosher Act of 2004 which was the subject of the instant litigation. The 2004 Act repealed some of the provisions of the previous Kosher Act, and it added three new sections which revised some of the provisions of the former Kosher Act. The new Act required sellers and manufacturers that market their food as kosher to so label their foods and to identify the people certifying the food as kosher. The 2004 Act did not define what is considered kosher, and it did not authorize New York State inspectors to determine the kosher nature of the food.
The plaintiffs then initiated the instant suit, this time challenging the constitutionality of the 2004 Kosher Act, claiming that the new law discriminated against non-Orthodox Jews and granted New York State a role in supervising what is kosher and what is not.
The district court granted the defendants’ motion to dismiss, rejecting out of hand plaintiffs’ contentions that the 2004 Act violated the Free Exercise and Establishment Clauses of the First Amendment. Furthermore, the lower court concluded that the 2004 Act was not void for vagueness. The district court found that New York passed the 2004 Kosher Act for a valid non-religious purpose—to protect consumers from fraud in the kosher food market. The new Act was a purely labeling and disclosure law. It did not endorse a particular religious view, and it did not entangle New York State employees in religion.
I. Kosher Law Protection Act of 2004
The 2004 Kosher Act requires:
(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; and (4) 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. The relevant portions of the Kosher Act are articulated in greater detail below.
Section 201-a, entitled “Kosher food and food products; packaging,” requires, in relevant part, that “packers” or manufacturers of products sold or offered for sale as kosher affix a kosher label to these products. N.Y. Agric. & Mkts. Law §§201-a(1)-(2). Furthermore, any food product labeled as “kosher,” “kosher for Passover,” “rabbinical supervision,” or labeled with any other generic marking indicating that the food product is kosher, may not be sold or offered for sale by the producer or distributor of such food product until the individual certifying such food products as kosher has registered with the Department of Agriculture and provided identifying information. See id. §§201-a(3)-(4); see also id. §201-a(6) (requiring that any advertisement for food products which represents that such food products are kosher identify the name of the person or entity certifying such food products as kosher).
Section 201-c is captioned “Persons certifying as kosher; filing with department” and requires that any individual who certifies non-prepackaged food products as kosher or kosher for Passover file a statement of such person’s qualifications with the Department of Agriculture. Id. §201-c(1). Food establishments and caterers offering food products for sale that are prepared on premises and represented as kosher must post a “kosher certification form”6 in a visible location on the premises and file such certification with the Department of Agriculture. Id. §201-c(3).
The Department of Agriculture has the power to inspect food establishments and caterers selling food represented as kosher to ensure compliance with sections two hundred one-a and two hundred one-b of the Kosher Act of 2004.
II. Establishment Clause Challenge
[T]he Establishment Clause of the First Amendment, which the Fourteenth Amendment made applicable to the states prohibits Congress from making a law regarding the establishment of religion. This means that government cannot sponsor, offer financial support for or be actively involved in religious activity. In order for a law to survive a challenge based on the Establishment Clause, it has to have a secular legislative purpose. Its primary purpose cannot be to advance or prohibit religion. Last, it cannot foster excessive government entanglement with religion.
As for the “secular legislative purpose” branch of the test, the Second Circuit noted that nowadays Jewish consumers make up less than thirty percent of the consumers of kosher food. The 2004 Kosher Act’s goal is to give consumers accurate information about the food they buy—thus the labeling requirements of the Act. Thus, the secular purpose of the statute is to protect against fraud. The court distinguished the current Kosher Act from the preceding one, noting that the current one does not adopt a definition of what is kosher. Hence, the current Act is secular in nature.
The court then turned its attention to the second prong of the test, i.e. whether the Act impermissibly entangles New York State with religion. The current Act does not use an Orthodox Jewish standard of what is kosher, nor does it regulate what foods are kosher. Each seller determines for itself what standard of kashrut to follow. The Act only requires that if a product is represented to the public as being kosher, the product has to have a label stating as much and information has to be given to the consumer for the basis of the kosher description. In essence, the seller is the one making the claim that a food product is kosher and they are the ones who must support this claim. The court concluded that the Act does not entangle New York State with religion because it does not require the State to enforce laws based on religious doctrine. The term “kosher” is not defined in the statute, no religious processes are listed as being required for kosher labeling, and no particular branch of Judaism is given preference.
Such routine regulatory interactions between the State and sellers of kosher products, which involve no inquiries into religious doctrine, no delegation of state power to a religious body, and no detailed monitoring or close administrative contact between secular and religious bodies, do not violate the non-entanglement command of the First Amendment.
As for the third prong of the test, i.e. “advancement of religion”, the court found that this test fails for the same reasons the second prong of the test, i.e. “excessive entanglement” fails. Since the Act does not endorse a particular branch of Judaism and merely requires that sellers of kosher products label their products as such, there is no violation of the Establishment Clause.
III. Free Exercise Challenge
At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons….[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest… However, a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.
The court concluded that the Kosher Act is a law of general applicability. It applies to any seller who offers products for sale as “kosher” regardless of the seller’s religious belief or affiliation. Moreover, the labeling requirement of the Act impacts all consumers of kosher products, regardless of the consumer’s religious belief. As the court noted, the market for kosher products is not limited to religious Jews. The remaining consumers of kosher food are Muslims and others with similar religious requirements as well as people with special dietary restrictions and those who prefer food with a kosher symbol because it signifies a level of purity. The interest of protecting against fraud in relation to kosher food extends to the general public.
Therefore, because the amended Kosher Act is neutral, generally applicable, minimally burdensome, and has a rational basis, no Free Exercise violation exists.
IV. Vagueness Challenge
[T]he void-for-vagueness doctrine requires that laws be crafted with sufficient clarity to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit standards for those who apply them.
The court concluded that
a person of ordinary intelligence would know how to comply with the [Kosher Act’s] labeling [requirement]. Moreover, there is no risk of arbitrary or discriminatory enforcement of the labeling provision.
The court threw out all of plaintiffs’ claims and found them meritless. It affirmed the lower court’s judgment and upheld the constitutionality of the Kosher Act 2004, finding that it does not violate the Establishment or Free Exercise Clause, nor is it unconstitutionally vague.