Court Upholds New York’s Kosher Law Protection Act

This week, U.S. District Court Judge Nina Gershon ruled that New York’s Kosher Law Protection Act of 2004 is constitutional. Commack Self-Service Kosher Meats, Inc. v. Hooker (EDNY Aug. 3, 2011). The law requires that manufacturers, packers and vendors of food represented to be kosher label the food as kosher and file a statement containing the qualifications of those who certify the food to be kosher. N.Y. Agric. & Mkts. Law §§ 201-a, 201-b, & 201-c. The information is then made available to the public on the Department of Agriculture and Markets’ website to assist in making informed decision regarding kosher food purchases.

In this case, the court dismissed the complaint of a Commack deli that alleged that the law violated the Establishment Clause and Free Exercise Clause of the First Amendment of the U.S. Constitution. The same judge had previously held that certain sections of a prior law were unconstitutional (see Commack Self-Service Kosher Meats, Inc. v. Rubin, 106 F. Supp. 2d 445 (EDNY 2000), affirmed, 294 F.3d 415 (2d Cir. 2002), cert. denied, 537 U.S. 1187 (2003)), but this time insisted that the revisions enacted in 2004 passed constitutional muster.

First, Judge Gershon held that the current law satisfied the three-part Lemon test used to analyze questions arising under the Establishment Clause. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Specifically, (1) the law has a secular purpose (preventing fraud), (2) it does not endorse any particular religious viewpoint, and (3) it does not create an impermissible entanglement with religion because the state does not actually determine whether a product is kosher under religious law.

Additionally, the law does not violate the Free Exercise Clause, because the it does not regulate religious practices; it only requires public disclosure of information. Furthermore, the law does not impose a substantial burden on religious practices. Although there is an incidental burden on manufacturers and vendors (i.e. labeling and disclosing basic information), that burden is rationally related to a legitimate government interest, namely, preventing fraud.

For further reading on this topic . . .

see this related post: Fraud a Concern as State Kosher Inspectors Eliminated

and these articles:

Mark Popovsky, The Constitutional Complexity of Kosher Food Laws, 44 Colum. J.L. & Soc. Probs. 75 (2010)

Shayna M. Sigman, Kosher Without the Law: The Role of Nonlegal Sanctions in Overcoming Fraud Within the Kosher Food Industry, 31 Fla. St. U. L. Rev. 509 (2004)


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