Food Establishments - Kosher and Halal Foods and the First Amendment

Previously I was looking at "the Establishment clause" of the First Amendment to the U.S. Constitution, specifically zeroing in on the subject of marriage. Well, whether you get married or not, a person's gotta eat. Hence this post.

You'll recall that I dressed up as Columbo last Thursday night. On Tuesday, we were discussing the banquet that I attended last Thursday, and we noted that one of the attendees was unable to eat the chicken that was provided.

I was unaware of any kosher or halal restrictions concerning chicken, so I ended up reading up on the topic.

Eventually, I ran across this:

The battle lines are being drawn between The People for the Ethical Treatment of Animals (PETA) organization and the National Committee for Furtherance of Jewish Education (NCFJE) with the advent of the season of Kapparot, the ancient Jewish rite of slaughtering chickens to atone for one's sins before the holiday of Yom Kippur....

The chickens are slaughtered after they are gently lifted over one's head in a circle while saying a prayer that notes it is the chicken that goes to its death, as opposed to the person for whom it acts symbolically as a proxy to carry one's sins away....

PETA, however, objects to the project and has made great efforts to put a stop to the practice. Last summer the organization complained to state and city agencies that NCFJE was guilty of cruelty to the birds, as well as a variety of health and safety violations.

This resulted in the following response:

As for whether the NCFJE will continue its project, which it has carried out in various Brooklyn neighborhoods for decades, Rabbi Hecht was equally firm. "As long as there is a Constitution in this country, and there is a First Amendment that guarantees me the right to practice my religion, and my religion includes the tradition of using chickens for Kapparot, I will continue to use a chicken.

"That is my Constitutional right under the United States law, it is protected by the First Amendment, and I am going to do it, and make sure that other Jews have the same opportunity. Thank G-d for this country that guarantees us that right, to practice our religion as our forefathers commanded us."

But opponents argue that kosher and halal slaughter methods are cruel. This was an issue in the UK in 2003:

The Farm Animal Welfare Council (FAWC), which advises the government on how to avoid cruelty to livestock, says the way Kosher and Halal meat is produced causes severe suffering to animals.

Both the Jewish and Muslim religions demand that slaughter is carried out with a single cut to the throat, rather than the more widespread method of stunning with a bolt into the head before slaughter.

Kosher and Halal butchers deny their method of killing animals is cruel and have expressed anger over the recommendation.

In the meantime, governments in the United States have stepped in to regulate kosher (and, I believe, halal) food production.

In some states in the U.S. (Arkansas, California, Connecticut, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Texas, and Virginia, as well as local ordinances in two counties in Florida and the Independent City of Baltimore), statutes defined "kosher" and made it a crime to sell a product which was called "kosher" if, in general, it was not processed in accordance with the Jewish religion.

But guess what? These regulations ran afoul of the Establishment Clause:

* Baltimore's City ordinance creating a kosher law was found to be unconstitutional: Barghout v. Bureau of Kosher Meat & Food Control, 66 F. 3d 1337 (4th Cir. 1995).

* New Jersey's Kosher laws were found to violate the Establishment clauses of both the New Jersey state constitution and the First Amendment: Perretti v. Ran-Dav's County Kosher Inc., 289 N.J. Super 618, 674 A. 2d 647 (Superior Ct. Appellate Div 1996). The opinion was affirmed by the New Jersey Supreme Court in which it found that the State's use of "Orthodox Jewish law" as a basis for the definition of kosher was an adoption of substantive religious standards which violated the State and Federal constitutions. 129 N.J. 155. The State's response was to create a new law which avoids any definition of a standard for what is or is not considered kosher. Instead, establishments which claim to be kosher must publicize what they mean by that, and the State will check to ensure that this standard is adhered to. For example, kosher restaurants must display a poster (provided by the Kosher Food Enforcement Bureau) on which they display the name of their rabbinic certifier, how often he inspects the place, whether or not he requires all ingredients to be kosher-supervised, and so on. In this manner, government enforcement becomes a consumer-protection issue, and avoids the problems of advancing any particular religious view.

* The United States Court of Appeals for the Second Circuit found that the challenged provisions of New York's Kosher Fraud law "on their face violate the Establishment Clause because they excessively entangle the State of New York with religion and impermissibly advance Orthodox Judaism." Commack Self-Serv. Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2d Cir. 2002), 45 ATLA L. Rep. 282 (October 2002). The Supreme Court refused to hear the case, and denied certiorari (123 S. Ct. 1250 (mem.) (2003)). The statute has since been revised and a new statute, The McKinney's Agriculture and Markets Law Sec. 201-a has since been passed.


You can see that New Jersey avoided the issue by not requiring the government to certify whether or not the food was kosher.

Well, let's take a look at this issue via the Lemon Tests, to which I previously alluded. (Now that I've mentioned the Lemon Tests twice in this blog, I self-proclaim myself as an expert in this area.) As you recall, the Lemon Tests consisted of the following:

1. Must have some secular, or non-religious legal purpose;
2. must neither promote or inhibit the practice of religion; and
3. must not must not foster "an excessive government entanglement with religion."

By recasting this as a consumer protection issue, New Jersey has rendered "kosher" on the same level as "fat-free" and "organic." And while some may claim that any government involvement in kosher/halal laws promotes the practice of religion, I hold to the view that denial of the ability to investigate whether a food is kosher/halal actually inhibits the practice of religion.

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