Edition: U.S. / Global

Court Ruling Highlights Divergences On 'Kosher'

Published: August 5, 2000

A ruling by a federal judge that New York State's kosher food laws are unconstitutional highlights the intersection of centuries-old biblical and rabbinical strictures with modern state sanctions.

Under the laws, state inspectors would visit supermarkets to ensure that kosher meat and dairy products were not mingled, would step into the kitchens of kosher restaurants that serve meat to make sure that vegetable dips did not contain cheese or other dairy products, and would even stick their hands into the water used to defeather chickens in poultry plants to determine whether it was too hot to permit the birds' blood to drain fully.

If the inspectors discovered forbidden activities the violators could be fined or, in the case where intentional deception was charged, could face criminal prosecution.

In declaring the laws unconstitutional, Judge Nina Gershon of Federal District Court in Brooklyn held that they ''foster excessive entanglements'' between religion and the state, in violation of the First Amendment. The ruling came in a suit in which the owners of a kosher butcher shop in Commack on Long Island challenged the laws after being cited for numerous violations under them.

Yesterday, Gov. George E. Pataki said that he had directed the state's Department of Agriculture and Markets, which enforces the laws, to appeal Judge Gershon's decision as well as to seek a stay of the decision pending the outcome of the appeal.

''These laws protect New Yorkers from consumer fraud,'' Mr. Pataki said, adding that such protection was necessary to make sure that ''food represented as kosher'' really was.

But in her ruling, Judge Gershon said that the laws in question, first written in the late 19th century, ''advance religion because they require the state to affirmatively assume ongoing obligations of enforcement of purely religious laws, inevitably requiring the state to rely on religious authority and interpretation to properly enforce them.''

The owners of Commack Self-Service Kosher Meats had also argued that in defining kosher food as ''prepared in accordance with Orthodox Hebrew religious requirements'' the laws impermissibly violated the rights of Jews who were not Orthodox and often had different standards of kosher. The suit further claimed that the laws were too vague because they failed to define what the requirements were.

Whatever the legal merits, it fell to a corps of nine inspectors in the Division of Kosher Law Enforcement within the Agriculture and Markets Department to thrust their faces into food-store cases, go into restaurant kitchens and sometimes step into slaughterhouses to assure that standards were being observed.

The inspectors have made about 7,500 inspections a year on average, visiting at least once a year the approximately 4,000 establishments in the state that call themselves kosher, said Jessica Chittenden, a spokeswoman for the Agriculture and Markets Department. In addition to routine inspections, they look into consumer complaints, she said, adding that last year the inspection force sent 103 violations to the agency's lawyers for legal follow-up.

The violations that have been found by the state range from those that many observant Jews would consider clear violations to those that might prompt disagreements among the same group. Most observant Jews would see a violation where a supposedly kosher restaurant was found serving pork, which is clearly forbidden under Jewish law, or where the same plates were used for meat and dairy foods.

But some rules that have been the subjects of disagreement are exemplified in the suit that led to Judge Gershon's ruling. On one occasion, the Commack butchers were cited for a package of veal spare ribs that were not ''soaked and salted as mandated by Hebrew Orthodox religious requirements.'' The store owners replied that they always soaked and salted the meats they offered, and that if the requirements were not met, ''we need to know what the analysis was and what the standards should be.''

On another occasion, when the state quarantined lamb tongues that it said had not been properly soaked and salted, the shop's owners replied that the tongues ''were properly soaked and salted as certified by their supervising rabbi,'' according to the court papers.

Critics say such examples highlight a major deficiency of the state laws: their failure to take into account varying views among Jews of what kosher means in certain situations.

One Conservative Jewish leader who said he thought Judge Gershon had made the right decision said that the differences were not only between Orthodox and other Jews, but often within the Orthodox branch itself.

That explains why there are ''so many different rabbis who certify what is kosher'' within that branch, said the Conservative leader, Rabbi Jerome Epstein, executive vice president of the United Synagogue of Conservative Judaism, which represents nearly 800 congregations in the United States and Canada.

Jeff Wiesenfeld, a former member of Governor Pataki's staff who served as his liaison on Jewish matters, contended yesterday that the reason the laws had run into trouble was that for a time in recent years they were being improperly enforced under the ''higher level'' of kosher ''required by the Orthodox.''

But others insisted that some of the regulations were simply too vague. David M. Fishlow, a press secretary to Attorney General Robert Abrams in the 1980's, said, ''In one case I remember the inspector would stick his hand in the vat'' rather than use a thermometer to determine the water temperature at a slaughterhouse.

But Rabbi Menachem Genack, rabbinical administrator of the Union of Orthodox Jewish Congregations, who called Judge Gershon's ruling ''unfortunate,'' said that that was an appropriate way for an inspector to proceed.

''The Talmud's definition of hot is, is it hot enough so that you would singe your hand if you put it in,'' he said. ''The Talmud doesn't give a temperature because there were no thermometers when it was written.''

Nonetheless, he said, there was wide agreement that water was too hot when ''it's in the range of 125 degrees.''

Photo: While state kosher-food laws are in question, private inspectors like Shmuel Goodman oversee the handling of kosher meats. (Fred R. Conrad/The New York Times)