Monday, March 03, 2003

Kosher No More

I believe that kosher food laws are a valid application of a state’s power to protect against fraud. Whether they are needed or wise is another matter. Now that the issue of constitutionality has been settled because the Supreme Court refused to review a ruling invalidating New York’s law, it’s time for those who have supported these statutes to consider whether to press for a revised law or to recognize that in the scheme of kosher food certification, government’s role is now very limited and may result in confusion.

Early signs are not promising. Quickly after the Supreme Court announced that it would not consider the issue, New York officials got into the act declaring that they would do all it takes to maintain that which need not be preserved. Governor George Pataki is especially determined that Albany find a way to resurrect the dead. Predictably, Assembly Speaker Sheldon Silver and others have vowed that New Yorkers will continue to have an arrangement that few now rely on. Apparently no one in officialdom thinks that it might be a good idea to close down the office that has supervised kosher food inspection, an act that would save a bit of money during New York’s unprecedented budgetary crisis.

In fairness, the officials cannot be faulted, for they are reacting to the painful sounds coming from some of the Orthodox. Agudath Israel’s spokesman has declared that the invalidation of New York’s regulatory scheme is “disappointing and dangerous.” Dangerous to whom? People who eat kosher don’t rely on the state’s inspectors to ensure that their butcher or restaurant isn’t passing off as kosher something that isn’t. I am certain that the inspectors themselves have not relied on the now invalid law to determine where they eat or shop. People who eat kosher depend not on the state but on certification agencies (several of which may not be all that reliable) and on individual rabbis, as well as on their faith in proprietors whom they trust.

State inspection arrangements may have the unintended consequence of misleading consumers. There are clear violations of kosher standards that New York’s inspectors have never paid attention to. There is a cadre of rabbis – they claim to be Orthodox – who have a single standard to determine whether they will provide certification, namely whether they are paid handsomely for this activity which requires little exertion since they supervise nothing. It is well known that some certified restaurants and bakeries sell or serve bread on Pesach – I think that this is against our religious law – and they are undisturbed by the state’s diligent inspectors. The fact is that the notion of a comprehensive state supervision system is largely a mirage.

When New Jersey’s kosher law was struck down several years ago, that state devised an arrangement which essentially allows each proprietor who claims to be kosher to indicate who or what standard is being relied on. Thus, as in the case of the Comack butchers who challenged New York’s law, a butcher could display a certificate indicating that the shop is certified as kosher by Rabbi X, a Conservative rabbi whose standards differ from what the Orthodox require. If Reform clergy certify as kosher something that isn’t kosher by anyone else’s standard, that would be okay under New Jersey’s present arrangement.

There is talk of New York going in the same direction, which would be a bad idea. Any state involvement in enforcing any kind of kosher food law could give rise to the same constitutional challenges that have led to the demise of New York’s and New Jersey’s statutes. More importantly, New Jersey’s approach could mislead a consumer who adheres to halachic parameters of kashruth and relies on a certificate signed by a rabbi who unbeknownst to the consumer adheres to a far less stringent standard.

If, as now is the case, all bets are off regarding what a state can regard as kosher, those who have advocated state action should face reality and change course. I cannot figure out why any Orthodox group would now want states to have kosher food laws of any kind. At the most – and here too I am skeptical – they should advocate the strengthening of anti-fraud laws to include kosher food laws as the ground for legal action by those who have been deceived.

My skepticism arises from a sense that judges will not want to get into this thicket. Furthermore, by pressing an issue that no longer should be pressed, Orthodox groups are giving an opening to those who mock our religious practices. This past Sunday’s New York Times featured a smart-alecky column on the Comack case that included the nasty comment that inspectors “were guided by a 16th century code of Jewish law.” The reference is to the Shulchan Aruch, an epic spiritual and intellectual achievement that has guided Jews and helped sustain us for twenty generations.

Despite all the reasons why state officials and Orthodox leaders should allow kosher food laws to expire, that’s not likely to happen, in large measure because politicians go to extremes to serve groups, even when there’s no reason to. What is happening to kosher food legislation is just a tiny part of the large dysfunctional picture of how laws are enacted to accommodate the imagined needs of certain groups.

At the same time, groups do not know when to let go, when to acknowledge that a law or program or some other governmental benefit has outlived its usefulness and it’s time to move on. Groups live on perception, on how public officials and the public look at them. They are fearful that if they do not try to retain what they already have, they will be looked at as weak and not deserving of attention or respect. By clinging to that which is no longer necessary, groups primarily deceive themselves.