New suit challenges revised state statute as ‘usurping’ local Conservative certifier.
The Long Island kosher butchers who successfully challenged the state’s kosher law in 1996 are now asking that the revised law be thrown out as a violation of religious freedom.
In court papers filed with Court of Claims Judge Frank P. Milano in Albany, the butchers allege that the revised kosher law “usurps the religious authority” of their local kosher supervisor. In addition, they said it fails to take into account the different standards of kashrut practiced today.
“There is much divergence in the practice of kashrut among the Orthodox and non-Orthodox (including the Conservative) denominations of Judaism, and even within denominations and sects themselves, as to what foods are acceptably kosher,” according to the suit.
“Orthodox Jews typically have stringent standards mandating the labeling or marking of foods as being kosher, whereas Jewish dietary laws for Conservative Jews have no such labeling requirement … nor do most other non-Orthodox sects/denominations of Judaism,” it said. “Thus, the law’s imposing of a uniform secular standard and system for labeling and marking all kosher foods being sold by purveyors of kosher foods for consumption other than at the point of manufacture interferes with and displaces the heterogeneity of religious standards and practices of different Jewish denominations...”
The court papers asked the judge to declare the law unconstitutional and to then have a hearing on the issue of punitive damages. Although the suit was filed in 2007, it was placed in abeyance to await the ruling of a federal court, which in May held that the revised kosher law did not unconstitutionally entangle the state with religion.
A spokesman for the Department of Agriculture and Markets, Joe Morrissey, was unavailable for comment.
The new state court papers were filed by Brian and Jeffrey Yarmeisch and their mother, Evelyn, the owners of Commack Kosher Meats and Caterers in Commack.
The old kosher law they successfully challenged had defined kosher as according to “Orthodox Hebrew” religious requirements. The new law removed that provision and requires that kosher products be properly labeled. It does not define what constitutes kosher but requires producers, distributors and retailers of food sold as kosher in the state to register with the state the person or organization that certifies them. In addition, it requires them to post identifying information about the kosher certifier in a prominent place and to maintain a record of each of the certifier’s inspections.
The suit, filed by attorney Robert Dinerstein of Commack, L.I., contends in part that the revised kosher law seeks to supersede the authority of the kosher supervisor hired by kosher retail establishments to certify that the products sold are acceptably kosher. It argues that these mashgichim or gatekeepers “are the ultimate arbiters as to whether food is acceptably kosher.”
It notes that although there are deviations in standards and practices among different gatekeepers, the revised kosher law imposes a uniform standard of labeling, marking and designating which foods are kosher. Kosher butchers, therefore, must decide “between the religious decisions of their gatekeeper, their ultimate religious authority … or the conflicting requirements of complying with the law.”
In an affidavit accompanying the court papers, Commack Kosher’s former mashgiach, Rabbi William Berman, pointed out that there are foods for which the Orthodox require kosher labels but that Conservative and other non-Orthodox Jews find “acceptably kosher even if they have not been prepared under kosher supervision.”
“Such food includes many dairy products, including cheese, and most wines, brandy, cognac and sherry,” said the suit.
One of the butchers, Brian Yarmeisch, said in an affidavit that the revised kosher law and the different directions from his gatekeeper have left him “confused.”
He said, for instance, that if he receives food in bulk (such as cheese) that does not bear a kosher label but that his certifier deems kosher, the revised kosher law requires him to place a kosher label on the product if he breaks it into smaller packages for resale — even if his gatekeeper says it is not necessary.
He pointed out that an agent from the State Department of Agriculture and Markets inspected his store for compliance with the kosher law in October 2007. Although no violations were found, Yarmeisch said that even the suggestion of a violation “would place an indelible and irreparable blemish on the reputation of our business and store.”
Such an “unfounded” violation was issued following a 1993 inspection that cost him much business, Yarmeisch said, suggesting that he is bringing this suit to avoid future violations stemming from a kosher law that is at variance with his gatekeeper’s directions.
Rabbi Laura Kurs, a rabbi ordained at the New Seminary Rabbinical School, a nondenominational institution in New Jersey, and the resident machgiach at a Modern Orthodox synagogue, also submitted an affidavit in which she said the revised kosher law is “ill conceived, fraught with problems and interferes with the constitutionally guaranteed religious freedoms of the various denominations of Judaism.”
Rabbi Kurs pointed out that under the revised kosher law, the local kosher certifier is the gatekeeper and arbiter of what is offered for sale. But the law also “flagrantly puts the state in the position of usurping the religious decisions of the duly registered gatekeeper. … If the duly certified gatekeeper determines that … the meat being sold by the purveyor is acceptably kosher, why must the purveyor preserve the paperwork for the state’s inspection to establish the source of the meat the gatekeeper found to be acceptably kosher?”
“I find this law to be an affront to the non-Orthodox Jewish leaders and mashgichim,” Rabbi Kurs said. “Our decisions as to what, if anything, requires a label to be acceptably kosher should be incontrovertible. …”
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