Thursday, September 09, 2004

Some Laws Are More Kosher Than Others

New Yorkers who eat kosher and who rely on government to protect them against deception can breathe easier because the state has a new kosher food law, replacing the one that courts declared treife on constitutional grounds. By my rough calculation, there may be as many as a minyan who fit into this category. The rest of us who eat kosher will continue to rely the old fashioned way on certifying agencies such as the Orthodox Union which does a splendid job and on entrepreneurial rabbis, a few of whom care more about the money than about upholding religious standards.

The law that was recently enacted by the ever-compliant Stepford Wives body known as the New York State legislature and reluctantly signed by Governor Pataki who had championed his own bill, is a decent piece of work. It hopefully will survive legal challenge, which is more than can be said about Mr. Pataki's mishmash legislation. Still, I am intrigued by the legislative finding, proclaimed in the new law, that many consumers in New York who purchase kosher products "do so for reasons unrelated to religious observance." I guess they like the higher prices.

I believe that under their police powers, states have the right to deter consumer fraud and therefore kosher food laws should pass legal scrutiny. Because regulatory schemes may rely on religious definitions and standards, the government could be trespassing on forbidden territory. Even so, I believe that the New York law is kosher. I doubt, however, that it is either necessary or wise.

Whatever relevance they may have once had, kosher food laws are no longer needed. They do not protect kosher consumers, although by creating the erroneous impression that they do, they paradoxically may abet deception against consumers.

All governmental enforcement of laws that seek to protect against fraud is selective. We need only think of enforcement of the tax code. It follows that at most only a fraction of the kosher food industry is subject to meaningful regulation. As noted, most of us rely on communal or private rabbinical supervision. Governments can do little to prevent fraudulent certification by persons with credentials. There are several "Orthodox rabbis," including one who has a state job, who certify restaurants and bakeries that are open on Shabbos and serve bread during Passover.

The enactment of the new law is an exercise in pushing through an open door, which is the kind of thing that state and local legislative bodies love to do as they seek to accommodate ethnic and interest groups by passing laws that do not deliver anything of significance. This allows both politicians and group leaders to boastfully claim that they have achieved something of importance for group members.

Such exercises divert attention away from pressing issues where governmental action might result in significant benefits. While Orthodox organizations earnestly advocate unneeded kosher food laws, they are doing nothing to improve the scandalous situation in cemeteries around the state where the religious rights of observant Jews and the sensitivity of many families have been severely compromised by the wrongful actions of cemetery officials. We have recently been treated to the sordid story of a former cemetery in Westchester County that was uprooted to make way for a shopping mall. The graves - at least some of them - were shipped to Israel.

This is but the tip of the iceberg of the moral and financial corruption that constitutes the cemetery situation in New York, a situation that cries out for religious advocacy and governmental action. Unlike kosher food, there is no open door here. The sordid situation at cemeteries is resistant to reform because those who control them gain much from arrangements that permit them to operate with minimal governmental scrutiny. There is much petty - at times not so petty - graft arising from endowment and perpetual care funds controlled by cemetery officials.

It would not take much legislative prowess to address the situation and it should not take much to get Orthodox groups to advocate reform. All that would be needed is the determination to confront the scoundrels who gain from the rotten status quo. Sadly, such determination is lacking, although there are Orthodox groups that are willing to do kazatzkas on their heads when a Jewish cemetery is defiled in Israel or overseas.

A second area that cries out for reform is the enforcement of laws that protect religious persons against workplace discrimination. New York State has a good law which is widely disregarded by employers, shockingly at times including governmental agencies. As is evident from a recent matter involving Sikhs and the Police Department in which Rabbi Haskel Lookstein played a vital and salutary role, it is possible to promote the legitimate interests of religious persons. Sadly and even incredibly, other groups are better organized on this front than Orthodox Jews, although for sure we Orthodox do great in public relations.

The upshot is that job discrimination is a lingering problem affecting too many religious Jews and causing pain in many homes. The Orthodox community does little to promote greater enforcement of existing laws. There is an unwillingness to challenge major employers who discriminate against religious Jews, particularly in limiting their advancement opportunities. We need to do the grunt work of preparing complaints and cases and this is far more difficult than pushing through an open door. As a consequence, there is today substantial discrimination against religious Jews in the job market.

More generally, religious Jews need an approach to legislation that promotes our ability to live religious lives. We do not need legislation that attempts to enforce our religious standards or has the government doing the job that we are loath to do. I have taken this position for a long while, without much success. Our leaders and groups prefer to push through open doors. While this may be psychologically satisfying, it is of scant benefit.