Barghout v. Bureau of Kosher Meat and Food Control

• Decision Date: 02 October 1995
• Docket Number: No. 94-1918,94-1918
• Citation: 66 F.3d 1337
• Parties: George BARGHOUT, Plaintiff-Appellee, v. BUREAU OF KOSHER MEAT AND FOOD CONTROL; Mayor and City Council of Baltimore; Mayer Kurefeld, Rabbi, Defendants-Appellants, and Joseph Nelkin, Chairman; Joseph Robison, Individually and in official capacity as Mayor of Laurel, Defendants. The National Jewish Commission on Law and Public Policy, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1337

66 F.3d 1337

64 USLW 2205

George BARGHOUT, Plaintiff-Appellee, v. BUREAU OF KOSHER MEAT AND FOOD CONTROL; Mayor and City

Council of Baltimore; Mayer Kurefeld, Rabbi,

Defendants-Appellants,

and

Joseph Nelkin, Chairman; Joseph Robison, Individually and

in official capacity as Mayor of Laurel, Defendants.

The National Jewish Commission on Law and Public Policy,

Amicus Curiae.

No. 94-1918.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 8, 1994.

Decided Oct. 2, 1995.

ARGUED: Burton Harry Levin, Assistant Solicitor, Baltimore, Maryland, for Appellants. Ronald Kevin Chen, Rutgers Constitutional Litigation Clinic, Rutgers Law School, Newark, New Jersey, for Appellee. ON BRIEF: Neal M. Janey, City Solicitor, Baltimore, Maryland, for Appellants. Susan Goering, American Civil Liberties Union of Maryland, Baltimore, Maryland, for Appellee. Nathan Lewin, Stuart Levey, Miller, Cassidy, Larroca & Lewin, Washington, D.C.; Dennis Rapps, National Jewish Commission On Law and Public Affairs, New York City, for Amicus Curiae.

Before WILKINS and LUTTIG, Circuit Judges, and LAY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by published opinion. Senior Judge LAY filed an opinion, in which Judge WILKINS concurs. Judge LUTTIG filed an opinion concurring in the judgment, in which Judge WILKINS concurs. Judge WILKINS filed a concurring opinion.

OPINION

LAY, Senior Circuit Judge:

The question before us is whether a Baltimore municipal ordinance prohibiting the fraudulent sale of kosher food violates the Establishment Clause of the First Amendment.

BACKGROUND

The Baltimore ordinance at issue, Baltimore, Md., City Code art. 19, Secs. 49-52 (1983), makes it a misdemeanor to, "with intent to defraud," offer for sale any food labeled kosher, or indicating compliance "with the orthodox Hebrew religious rules and requirements and/or dietary laws," when the food does not in fact comply with those laws. Id. at Sec. 50. The ordinance further states as follows:

In order to comply with the provisions of this section persons dealing with either kosher meat, meat preparations, food and/or food products only, or persons dealing with both kosher and non-kosher meat, meat preparations, food and/or food products must adhere to and abide by the orthodox Hebrew religious rules and regulations and the dietary laws; otherwise he shall be in violation of this section.

Id. (emphasis added). To aid in its enforcement, the ordinance creates an unpaid Bureau of Kosher Meat and Food Control. Id. at Sec. 49(a). Members of the six-person Bureau are appointed by the Mayor and must include three duly ordained Orthodox Rabbis and three laymen selected from a list submitted by "The Council of Orthodox Rabbis of Baltimore" and "The Orthodox Jewish Council of Baltimore." Id. Duties of the Bureau include inspecting slaughter houses, butcher shops, and other establishments offering kosher food for sale "with the view and purpose of administering and enforcing the laws and rules relating to the possession, sale, manufacture, preparation and exposure for sale of kosher meats, meat preparations, food and food products in accordance with the orthodox Hebrew religious rules and requirements and dietary laws...." Id. at Sec. 49(e). In addition, the Bureau is to report violators to the Mayor or other law enforcement authorities. Id. at Sec. 49(h). The Bureau is authorized to employ a paid inspector to aid in carrying out its duties. Id. at Sec. 49(g).

George Barghout is the owner and operator of a business called "Yogurt Plus" in Baltimore, which offers both kosher and nonkosher foods for sale. On September 1, 1989, the Bureau's paid inspector, Rabbi Mayer Kurefeld, investigated a complaint that Barghout was violating the ordinance. Rabbi Kurefeld's inspection revealed that Barghout placed kosher hot dogs on a rotisserie next to nonkosher hot dogs. This arrangement allowed grease from the nonkosher meat to contaminate the kosher hot dogs, rendering them nonkosher. Rabbi Kurefeld wrote up a violation warning, but Barghout refused to sign it. The record reflects that the inspector returned to Yogurt Plus three more times over the next few months. Each time, the inspector discovered that Barghout continued the practice of placing kosher hot dogs on a rotisserie with nonkosher meat.

Barghout was issued several additional warnings and finally charged with violating the ordinance. On November 15, 1990, he was convicted and fined $400 plus $100 in court costs. Barghout then sought a declaratory judgment from the United States District Court for the District of Maryland that sections 49 and 50 of the ordinance violated the First and Fourteenth Amendments to the Constitution.

The district court thereafter certified two questions to the Court of Appeals of Maryland:

I. Can an individual be convicted of violating Article 19, Sec. 50 of the Baltimore City Code, if he or she sincerely believes that his or her conduct conforms to kosher requirements, even though the City inspector may disagree, or even though the individual's conduct might in fact be violative of religious laws?

II. Does Article 19, Sec. 50 of the Baltimore City Code violate Article 36 of the Declaration of Rights of the Constitution of Maryland?

Barghout v. Mayor, 325 Md. 311, 600 A.2d 841, 841-42 (1992). The Court of Appeals of Maryland answered both questions in the negative. Id. 600 A.2d at 845, 849.

After reviewing the answers certified from Maryland's highest court, the federal district court ¹ held the ordinance violates the Establishment Clause, finding its primary defect in its excessive entanglement of civil and religious authority. Although the court recognized that the three-prong test of Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971), is "no more than a helpful sign post," it relied upon the Lemon test in its analysis. Barghout v. Mayor of Baltimore, 833 F.Supp. 540, 545 (D.Md.1993) (quoting Mueller v. Allen, 463 U.S. 388, 394, 103 S.Ct. 3062, 3066-67, 77 L.Ed.2d 721 (1983)). The court held that the ordinance has a "plausible secular purpose" in the prevention of fraud and therefore satisfies the first prong of the Lemon test. ² Id. at 545- 46. The court found, however, adopting the reasoning of the New Jersey Supreme Court in Ran-Dav's, 608 A.2d at 1364, that the ordinance violated the second prong of the Lemon test because it protects "the tenets and rituals of Orthodox Judaism" ³ and therefore has the effect of advancing a particular religion. Id. at 550. Finally, in holding that the ordinance also violated the third prong of the Lemon test, the district court observed the principal defect of the ordinance lies in its creation of excessive entanglement of religious and secular authorities because "the regulations impose a wholly religious standard for compliance" and require "the excessive involvement of specific religious organizations and figures in interpreting and enforcing those standards." Id. at 546. Based on the foregoing reasoning, the district court granted summary judgment in favor of Barghout, declared the ordinance unconstitutional, and enjoined its enforcement. ⁴ This appeal followed; we affirm.

ANALYSIS

At least twenty-one states have adopted laws prohibiting the mislabeling of kosher food. ⁵ Only one state has struck down its kosher food law as in violation of the United States Constitution; the New Jersey Supreme Court invalidated its kosher food consumer fraud law in Ran-Dav's, 608 A.2d at 1353. ⁶ In Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402 (1925), the United States Supreme Court upheld New York's kosher food consumer fraud statute against a challenge launched by butchers who claimed the term kosher was unconstitutionally vague. ⁷ In holding the term was not so vague as to violate the Due Process Clause, the Court did not address whether the law was constitutional under the religion clauses of the First Amendment because the Supreme Court had yet to determine that the First Amendment applied to the states. ⁸

The Establishment Clause of the First Amendment provides, in relevant part, that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. It is applicable to the states through the Fourteenth Amendment's Due Process Clause. In assessing the facial challenge to the Baltimore ordinance, we apply the three factors articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). ⁹

Section 49 of the ordinance creates the Bureau of Kosher Meat and Food Control, required by law to consist of three duly ordained Orthodox Rabbis and three laymen chosen from a list submitted by two Orthodox associations. The City defends the role of the Bureau, arguing that these "experts" merely advise civic authorities of violations and hold no real power and that, in any event, even if section 49 is unconstitutional, it may be severed from the remainder of the ordinance, thereby saving the substantive provisions of section 50. We must reject these arguments. First, we think it clear that section 49 is on its face unconstitutional in that it fosters excessive entanglement of religious and secular authority by vesting significant investigative, interpretive, and enforcement power in a group of individuals based on their membership in a specific religious sect. The Supreme Court has made clear that the Establishment Clause does not permit legislative bodies to expressly delegate discretionary governmental functions to religious organizations or their members.

In Larkin v. Grendel's Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982), the Court struck down a Massachusetts zoning statute that permitted a church to veto the issuance of a liquor license to any establishment located within a 500-foot radius of the church. In holding the law violated the Establishment...