Ethnic groups are like people who cannot discard old possessions, even long after they have lost any residual utility. This urge to hold on to possessions has deep emotional roots that are more powerful than any feelings of nostalgia. There is a sense of loss when a possession is discarded. While few of us are Collier brothers, few of us know when to get rid of what is not needed. Perhaps Andersen should provide a new form of consulting service.
My wager is that Jewish groups, mainly Orthodox, will react to the latest court decision invalidating a state’s – this time New York’s – kosher inspection law by pressing for an appeal or new legislation that attempts to circumvent the ruling. It would be far better to let the old system die. It is an anachronism and we should rid ourselves of what is not needed.
Not that the decision is correct. The three judges in black robes on an elevated bench in the U.S. Court of Appeals in Manhattan held that the supervisory scheme excessively entangles the state in religious matters and therefore violates the First Amendment. This conclusion flies in the face of a century of experience under the law, a consideration that I would imagine to be relevant in determining how a statute operates. I guess that Oliver Wendell Holmes had it wrong and the life of the law is logic and not experience.
While the smitten law did little harm, it also accomplished little good, which is one reason why it should be given a decent burial. Some may lose their jobs; I imagine that the Jewish people have survived greater calamities.
The statute and the regulatory process it established are intended to protect consumers against fraud, not to promote religion or observance. Even in its heyday, the process did not amount to much. Small fish were caught, usually on minor violations. They paid relatively minor fines which scarcely made a difference. It’s a stretch to claim that the arrangement has had an appreciable impact on counteracting kosher food fraud.
Kosher food laws do not result in a state agency certifying that an establishment or product is kosher. We cannot walk into a butcher shop and find a certificate issued by the New York Department of Agriculture vouching for the kashruth of the place. Certification is a communal or, at times, private matter. People who want to eat kosher rely on the assurances provided by communal organizations, such as the Orthodox Union which has a splendid record, or, more problematically, on individual rabbis.
Since there is money to be made from certification, inevitably there are scoundrels who exploit the system. There are unscrupulous “rabbis,” including one who has a cozy patronage job with the state, who are available to certify as kosher food places that violate basic rules of kashruth, as when they serve bread during Pesach. The state cannot do a thing to prevent this, with or without kosher laws. Which brings me to the old joke about the hotel owner who said to his mashgiach who was demanding more money, “For what I am now paying you, I can afford to be kosher.”
Justice Felix Frankfurter who has not been treated kindly by history cautioned frequently that there is a world of difference between the constitutionality of a law and its wisdom. That which is foolish may still pass constitutional muster. So, too, with kosher inspection legislation. Here, as elsewhere, religious Jews in particular should recognize that the government has a limited reach, that to rely on the enforcement power of civil authorities is to welcome failure. Of course, even failure provides a measure of comfort because, after all, there are laws on the books that appear to give what the group wants.
In opposition to what is the prevailing view in Orthodox ranks, I believe that irrespective of any question of constitutionality, political and legislative channels should not be used to accomplish goals that are the internal business or responsibility of the group and not of the larger society. For this reason, I continue to oppose “Get” legislation. Substantial experience has shown that such laws have no more than a miniscule impact on matrimonial battles involving religious Jews.
It is always tempting and comforting to take the governmental route. That’s the way interest groups usually act. It is comforting to believe that after the legislative battle is won, the communal problem has been solved. The truth is that what we cannot accomplish or enforce within our community, government cannot achieve for us.
We should continue to use governmental processes to secure arrangements or benefits that promote our pursuit of happiness within the larger society. We need to have laws and administrative arrangements that counter discrimination or which promote legitimate opportunities for fruitful lives. That is why laws protecting Sabbath observers in employment are both necessary and proper. Unfortunately, we have our priorities mixed up, so that this vital right which affects thousands of religious Jews goes begging within our community. Last week, there was a conference on religious discrimination in Washington, sponsored by the Pew Charitable Trust. A representative of the Seventh Day Adventists said that his group now spends one-million dollars a year to counteract job discrimination against Sabbath observers, which is about one-million dollars more than the Jewish community is spending.
A good example of legitimate legislation is the item included in New York’s budget providing funds for in vitro fertilization procedures. This expenditure which was advocated by a number of groups triggered a pathetic editorial outburst by the Times against “powerful blocks of Orthodox Jewish voters in Brooklyn and Rockland County.” In the mindset of our favorite newspaper, when other groups demand expenditures for health or other benefits, that’s kosher. When Orthodox Jews make the pitch, there is the smell of political corruption.
It is hard to discard old possessions and the Times has difficulty ridding itself of hang-ups about things Jewish. Wouldn’t it be wonderful if at long last Timesmen could exorcise the demons that trouble them?