Monday, May 21, 2001

Unkosher Litigation

Every survey of the religious behavior of American Jews shows a decline in kosher food observance, which is hardly surprising in view of what is happening throughout our community. Since Reform Jews and the unaffiliated have never had much use for kosher food requirements, the decline in observance is most pronounced in Conservative ranks. Today, no more than one in four of those who are affiliated with a Conservative congregation keep kosher. This may explain why the United Synagogue of Conservative Judaism has joined the brief submitted by the American Jewish Congress in opposition to New York’s kosher food statutes. Years ago, when the Conservative movement was still trying to conserve more of our traditions than it is today, its leaders were strong advocates of kosher food laws. But its standards are steadily being adjusted downwards to accommodate the lowered level of observance of the membership.

If the U.S. Court of Appeals in New York upholds the lower court ruling that invalidated New York’s laws on separation of church and state grounds, the direct impact on kosher observance will be negligible. Those who keep kosher, including traditional Conservative Jews, rely not on governmental vigilance but on religious certification, such as is provided by the Orthodox Union with its familiar symbol. Laws are not designed to tell people what they can eat or where they can shop. There are no signs in meat stores indicating that the place has been inspected by government officials and is certified as kosher.

The purpose of legislation and the scheme of enforcement established by government is to protect consumers by curtailing fraud. Although the reach of government is far more limited than many believe it to be, the curtailment of fraud is a legitimate public goal that finds expression in numerous other legislative enactments that are designed to protect consumers.

Until recently, that was the position of the AJCongress. For all of its hypersensitivity about religion and government, the agency acknowledged that decades of experience with kosher food laws had not resulted in government entanglement in religious matters. For whatever reasons, the AJC has changed its stance. For all who have wondered whether it is still among the living, the New York case provides concrete evidence that it is, albeit in a state of advanced organizational senility.

When the New Jersey Supreme Court was considering that state’s kosher laws in the early 1990’s, the AJC firmly came out on the side of constitutionality, concluding its brief with the confident assertion that “this is a case in which entanglement is only minimal, as the long experience of New York indicates. New York and the rabbinate have not become hopelessly intertwined as a result of the enforcement of the state’s kosher food laws.”

Now, with the New York law being challenged, the AJC begins its brief by declaring, “This is an easy case.” It then goes on to insist that the kosher laws result in the entanglement of state and religion. No mention is made of its earlier position, and it is this forgetfulness that leads me to conclude that the AJC is experiencing advanced senility.

The Conservative movement’s involvement in the case is apparently designed to allow the marketing as kosher products that are sanctioned as such by Conservative rabbis, although nominal Orthodox standards are not met. New York’s laws already provide that fraud can occur only if there is scienter or knowledge, which means that proprietors know that they are selling products that are definitely not kosher.

The outcome of the New York case is not as important as some of the Orthodox community believe it to be. There is, just the same, a discordant note that deserves comment. Litigation is ordinarily resorted to when the stakes are high and there is no other way to achieve a fair resolution. While American society is far too litigious, lawsuits often are an appropriate way to achieve social goals. However, intra-communal litigation, as between Jewish groups, should be a rarity, especially because we are constantly being preached to about civility and tolerance, about the importance of comity and the value of diversity.

It seems that these sermons are to be applied selectively, that there is an exclusion clause when Orthodox interests and organizations are being targeted. That is the message of the kosher food case and gay rights attack on Yeshiva University’s housing policy, an issue that I discussed last week. In these matters – and presumably others – the adversarial approach of litigation can be employed.

In contrast, when Rabbi Avi Shafran criticized the Conservative movement in an article published in Moment, there was an outpouring of protest, the general tenor being that he had seriously violated a newly-minted eleventh commandment that proclaims, “Thou shalt not speak ill of other Jews.” Thus, Edah, the ultra-Modern Orthodox group, rather predictably joined in the condemnation, saying that “representatives of the various denominations can help each other achieve the best goals for the Jewish people through dialogue and cooperation, loving challenge and respectful disagreements.”

I wonder where the loving challenge of litigation that attacks Jewish traditions fits in. As an Orthodox Jew, it is helpful to know the new rules of the game.