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2d Cir: NY kosher law doesn’t violate First Amendment

by Brad A. Greenberg

May 14, 2012 | 6:01 pm

Last week, in Commack Self-Service Kosher Meats, Inc. v. Hooker, the Second Circuit Court of Appeals upheld New York’s 2004 Kosher Law Protection Act. The court stated that a labeling law requiring manufacturers of kosher foods to file with the state Department of Agriculture before using label on sold products serves a secular purpose of protecting against consumer fraud.

(Short Reuters story here; the court’s opinion here.)

Significantly, the law did not suffer from the fatal flaws of a previous New York kosher law struck down in 2002 because it required courts to make religious decisions, which the First Amendment prohibits courts from doing. As Howard Friedman noted, this law “does not define what is kosher, adopt kosher standards of any particular branch of Judaism nor authorize state inspectors to determine if products are in fact kosher.”

Significantly, the court said:

New York, through the Kosher Act, has not explicitly adopted or endorsed one religion or religious group over another, nor has it encouraged particular religious activities.  The neutral labeling requirement does not define “kosher” or any other religious terms and contrasts with prior situations in which this Court has found a perception of endorsement. ...

Therefore, because the amended Kosher Act neither advances nor impedes religion, has a secular purpose, and does not create an excessive entanglement between state and religion, it does not violate the Establishment Clause of the First Amendment.

The court also found a Free Exercise challenge in want because Kosher Act is a neutral, generally applicable law that imposes a nonsubstantial burden and has a rationale basis. In other words, none of the key elements for a Free Exercise violation cut against the kosher law.

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