Commack Self-Service Kosher Meats, Inc. v. Weiss

• Decision Date: 21 May 2002
• Docket Number: Docket No. 00-9118.,Docket No. 00-9116.
• Citation: 294 F.3d 415
• Parties: COMMACK SELF-SERVICE KOSHER MEATS, INC., d/b/a Commack Kosher, Brian Yarmeisch and Jeffrey Yarmeisch, Plaintiffs-Appellees, v. Rabbi Luzer WEISS, as Director of the Kosher Law Enforcement Division of The New York State Department of Agriculture and Markets, Defendant- Appellant, Hon. Sheldon Silver, Abe Alper, Jon Greenfield, Jack Lee, Rabbi Moshe Portnoy, Richard Schwartz, Agudath Harabonim of the United States and Canada, Agudath Israel of America, National Council of Young Israel, Rabbinical Alliance of America, Rabbinical Council of America, Torah Umesorah National Society of Hebrew Day School and Union of Orthodox Jewish Congregations of America, Intervenors-Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

294 F.3d 415

COMMACK SELF-SERVICE KOSHER MEATS, INC., d/b/a Commack Kosher, Brian Yarmeisch and Jeffrey Yarmeisch, Plaintiffs-Appellees, v. Rabbi Luzer WEISS, as Director of the Kosher Law Enforcement Division of The New York State Department of Agriculture and Markets, Defendant- Appellant Hon. Sheldon Silver, Abe Alper, Jon Greenfield, Jack Lee, Rabbi Moshe Portnoy, Richard Schwartz, Agudath Harabonim of the United States and Canada, Agudath Israel of America, National Council of Young Israel, Rabbinical Alliance of America, Rabbinical Council of America, Torah

Umesorah National Society of Hebrew Day School and Union of Orthodox Jewish Congregations of America, Intervenors-Defendants-Appellants.

Docket No. 00-9116.

Docket No. 00-9118.

United States Court of Appeals, Second Circuit.

Argued June 28, 2001.

Decided May 21, 2002.

Robert Jay Dinerstein, Dinerstein & Lesser, P.C., Commack, NY, for Plaintiffs-Appellees.

Caitlin Halligan, First Deputy Solicitor General of the State of New York, New York, N.Y. (Eliot Spitzer, Attorney General of the State of New York, Michael Belohavek, Deputy Solicitor General of the State of New York, on the brief, and Sachin Pandya, Assistant Solicitor General of the State of New York, of counsel), for Defendant-Appellant.

Nathan Lewin, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Washington, DC (Alyza D. Lewin, Noam B. Fischman, on the brief, and Dennis Rapps, National Jewish Commission on Law and Public Affairs, New York, NY, of counsel), for Intervenors-Defendants-Appellants.

Marc D. Stern, American Jewish Congress, New York, NY, for Amici Curiae American Jewish Congress and United Synagogue of Conservative Judaism.

Before MINER, LEVAL, and POOLER, Circuit Judges.

MINER, Circuit Judge.

The word "kosher" has been part of the vernacular for some time as a synonym for correct, genuine, or legitimate. See 8 Oxford English Dictionary 753 (1971). Its original meaning, however, lies in the centuries-old Jewish law of kashrut, the Hebrew noun from which "kosher" is derived. Kashrut encompasses the entire body of rules relating to foods that may be consumed as well as to the preparation of such foods. The Hebrew National company, a well-known purveyor of kosher hot dogs and other kosher food products, has long marketed its goods with the slogan, "[w]e answer to a higher authority." Hebrew National, http://www.hebrewnational.com/. In New York, the principal authority to which it answers is the State's Department of Agriculture and Markets, which is charged with the enforcement of the New York statutes prohibiting intentional fraud in the sale of kosher food. Whether those statutes are violative of the First Amendment command that "[the States] shall make no law respecting an establishment of religion," is the question before us on this appeal.

Defendant-appellant Rabbi Luzer Weiss, Director of the Kosher Law Enforcement Division of the New York State Department of Agriculture and Markets ("the Department"), and intervenors-defendants-appellants¹ appeal from a summary judgment entered in the United States District Court for the Eastern District of New York (Gershon, J.) declaring that New York Agriculture & Markets Law sections 201-a, 201-b(1), 201-c, 201-e (2-a) and (3-c), 201-f, 201-h, and 26-a ("the challenged laws") on their face violate the Establishment Clause of the First Amendment, and enjoining the Department from enforcing those provisions. The challenged laws are some of New York's statutory provisions aimed at preventing fraud in the kosher food industry. Plaintiffs-appellees are Commack Self-Service Kosher Meats, Inc., d/b/a Commack Kosher, an entity in Commack, Long Island engaged in the meat business, and its owners, Brian and Jeffrey Yarmeisch (collectively, "the Yarmeisches"). Over the last sixteen years, the Yarmeisches have been cited for violations of New York's kosher fraud laws on at least four occasions.

In January 1996, the Yarmeisches brought this action, claiming that the challenged laws violate the Establishment Clause of the First Amendment by defining "kosher" to mean food that is "prepared in accordance with the orthodox Hebrew religious requirements." See, e.g., N.Y. Agric. & Mkts. Law §§ 201-a(1), 201-b(1) (McKinney 1991). The Yarmeisches also asserted a free exercise claim in which they contended that the challenged laws deprive non-Orthodox Jewish consumers of kosher food products of their First Amendment right to the free exercise of religion. Additionally, the Yarmeisches claimed that the challenged laws are unconstitutionally vague in violation of due process, and that, by reason of their irregular and arbitrary enforcement, they violate due process as applied. Lastly, the Yarmeisches sought to enjoin the Department from disseminating information concerning future violations of the challenged laws until after an alleged offender is prosecuted and found guilty. After both sides moved for summary judgment, the district court granted the Yarmeisches' motion, holding that the challenged laws on their face violate the Establishment Clause. The court found that (1) the challenged laws excessively entangle the state and religion because, in order to be enforced, the laws require the Department to refer to "orthodox Hebrew religious requirements," and (2) the laws have the impermissible effect of advancing Orthodox Judaism by requiring vendors of food products labeled "kosher" to conform to Orthodox kosher standards and thereby cause consumers of such products to purchase only products that are kosher under the Orthodox definition.

For the reasons that follow, we affirm.

BACKGROUND

I. The Facts

The Yarmeisches received their first civil citation for transgressing New York's kosher fraud laws² following an inspection of their store by the Department on July 10, 1986. The Department's inspector, Max Goldgrab, seized for testing a package of veal spareribs that was labeled "soaked and salted."³ The Department's analysis revealed that "selected surface tissues [of the spareribs] do not contain added salt" and thus that Commack Kosher was in violation of New York's kosher fraud laws. In a letter responding to the citation, the Yarmeisches claimed that Commack Kosher "has always soaked and salted all the meats that state that they are soaked and salted. If this does not meet with the Hebrew orthodox religious requirements we need to know what the analysis was and what the standards should be." Despite this assertion, the Yarmeisches did not formally challenge the violation and paid a civil penalty fine in the amount of $600.

The Department inspected Commack Kosher again on January 7, 1987, and found another violation of New York's kosher fraud laws. This time the Department seized "two ... packages of beef chuck side steaks," each of which was marked "soaked and salted." The Department's "laboratory analysis did not reveal a significantly greater salt content in the outside surface of the steak than in the inside." The Department asserted that "[h]ad the steak been properly soaked and salted[,] ... the analysis would have indicated that the outside surface of the steak... had a measurably higher salt content than the inner part of the meat." The Department therefore concluded that "[t]he defendant's steak was not soaked and salted according to orthodox Hebrew religious requirements and was improperly offered for sale and represented as such." Accordingly, the Department alleged violations of New York Agriculture and Markets Law section 201-a(1), which prohibits the sale of any food product represented to be "kosher" that has not been prepared "in accordance with the orthodox Hebrew religious requirements," as well as section 201-c(1), which contains a similar prohibition. N.Y. Agric. & Mkts. Law §§ 201-a(1), 201-c(1). The Yarmeisches responded to the claimed violations in a letter dated April 29, 1987, which contained the following explanation of their soaking and salting method:

We take the side steak with the top and bottom fat left on the meat and soak it in water for one half hour, salt for one hour, and then rinse thoroughly. We then proceed to remove the fat and then face the meat (remove dark meat before packaging).

This is the procedure for all meat that is labeled soaked and salted, all of which is done under the direction of Rabbi Berman who has been supervising this establishment for approximately five years.

Rabbi Berman is a rabbi who adheres to the teachings of the Conservative branch of Judaism. The Yarmeisches' letter further explained that they believed their procedures for soaking and salting were in accordance with kosher requirements and requested that the Department "explain how [any problem with their procedures] can be rectified." The Department did not directly respond to their inquiry, but instead filed a verified civil complaint against the Yarmeisches. Ultimately, the Yarmeisches paid a $300 civil penalty fine as punishment for the 1987 violation.

After a third inspection of Commack Kosher in April 1988, the Department quarantined lamb tongues on the ground that the tongues had not been properly soaked and salted. The specific allegation of wrongdoing was that the tongues were found soaking in a solution of salt water, which "is improper preparation [that] render[ed] the tongues irreversibly non "kosher"". The Yarmeisches challenged the Department's decision, stating that the tongues were properly soaked and salted as certified by their supervising rabbi. The Department countered with a letter to the Yarmeisches claiming that, in any event, the tongues had not been properly deveined in accordance with Orthodox Hebrew requirements. The Yarmeisches state that this charge is still pending, while the Department says that it considers the case closed and, if any charges are still pending, it will have them dismissed.

The Department inspected Commack Kosher again on February 22, 1993. A month later, the...