Commack Self–Service Kosher Meats, Inc. v. Hooker

Decision Date10 May 2012
Docket NumberDocket No. 11–3517–cv.
Citation680 F.3d 194
PartiesCOMMACK SELF–SERVICE KOSHER MEATS, INC., d/b/a Commack Kosher Deli and Market, a/k/a Commack Kosher, Brian Yarmeisch, Jeffrey Yarmeisch, Evelyn Yarmeisch, Plaintiffs–Appellants, v. Patrick HOOKER, Commissioner of the Department of Agriculture and Markets of the State of New York, Luzer Weiss, Rabbi, Director of the Kosher Law Enforcement Division, Department of Agriculture and Markets of the State of New York, Defendants–Appellees, State of New York, Defendant.
CourtU.S. Court of Appeals — Second Circuit


Prior Version Recognized as Unconstitutional

N.Y.McKinney's Agriculture and Markets Law §§ 201–a, 201–b(1), 201–c, 201–e(2–a, 3–c), 201–f, 201–h, 26–aRobert Jay Dinerstein, Robert Jay Dinerstein, P.C., Commack, NY, for PlaintiffsAppellants.

Brian A. Sutherland, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Cecilia C. Chang, Deputy Solicitor General, Robert C. Weisz, Assistant Solicitor General, on the brief), Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for DefendantsAppellees.

Before: WALKER, LYNCH, and DRONEY, Circuit Judges.

DRONEY, Circuit Judge:

PlaintiffsAppellants Commack Self–Service Kosher Meats, Inc., d/b/a Commack Kosher Deli and Market, a/k/a Commack Kosher (Commack Kosher), Brian Yarmeisch, Jeffrey Yarmeisch, and Evelyn Yarmeisch (collectively with Commack Kosher, “the plaintiffs) challenged the constitutionality of New York State's kosher labeling and marketing statutes, enacted as the Kosher Law Protection Act of 2004 (the “Kosher Act or Act). See Markets and Marketing—Consumer Protection—Kosher Foods, 2004 N.Y. Sess. Laws Ch. 151 (A.9041–A) (McKinney) [hereinafter “Kosher Act] (codified as N.Y. Agric. & Mkts. Law §§ 201–a–201–d). The district court (Gershon, J.) entered judgment in favor of the defendants, Patrick Hooker, Commissioner of the Department of Agriculture and Markets of the State of New York (Department of Agriculture), and Rabbi Luzer Weiss, Director of the Kosher Law Enforcement Division (KLED) of the Department of Agriculture, after granting the defendants' motion to dismiss.1 The court found that the challenged laws do not violate the Establishment or Free Exercise Clauses and are not unconstitutionally vague.

For the reasons that follow, we affirm.

I. Factual Background

PlaintiffAppellant Commack Kosher is a delicatessen and butcher shop in Commack, New York, that specializes in kosher foods. PlaintiffsAppellants Brian, Jeffrey, and Evelyn Yarmeisch are shareholders, directors, and officers of Commack Kosher. Commack Kosher operates under the kosher supervision of Rabbi William Berman, a Rabbi of a Conservative Jewish Synagogue.

In 1996, the plaintiffs filed an action in the United States District Court for the Eastern District of New York, challenging the constitutionality of the prior version of the Kosher Act that imposed inspection and labeling requirements on food marketed as kosher. The plaintiffs alleged that those statutes violated the religious freedom clauses of the First Amendment to the United States Constitution (known as the “Establishment” and “Free Exercise” Clauses), as well as the Equal Protection and Due Process Clauses of the Fourteenth Amendment. See Commack Self–Serv. Kosher Meats, Inc. v. Rubin, 106 F.Supp.2d 445, 446 (E.D.N.Y.2000). Duringthat litigation, the plaintiffs challenged only the portions of the law which “define[d] kosher as prepared in accordance with orthodox Hebrew religious requirements, require[d] adherence to those requirements, or [we]re integral to the State's enforcement of such requirements.” Id. at 447 n. 2. The plaintiffs did not contest the sections of the law that simply required the labeling of the food as kosher or the identification or registration of the person or organization certifying a food product as kosher (the “certifier”). See Commack Self–Serv. Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 425 n. 6 (2d Cir.2002) [hereinafter Commack I] (citing N.Y. Agric. & Mkts. Law §§ 201–g, 201–e(1)(3), 201–i).

In 2000, the district court granted the plaintiffs' motion for summary judgment, finding that the challenged portions of the law facially violated the Establishment Clause 2 because that version of the Kosher Act required state officials to apply religious doctrine—namely Orthodox Jewish standards of kashrut—in order to determine whether the food was kosher.3Commack, 106 F.Supp.2d at 455–56, 459. On appeal, this Court agreed, noting that although the State had a valid interest in protecting the general public against fraud in the marketing of kosher food, the challenged laws violated the Establishment Clause “by fostering excessive State entanglement with religion and by producing a primary effect that both advances and inhibits religion.” See Commack I, 294 F.3d at 431–32. Specifically, the challenged laws excessively entangled the State with religion because, inter alia, “the challenged laws interpret[ed] ‘kosher’ as synonymous with the views of one branch [of Judaism], those of Orthodox Judaism.” Id. at 426–27. The prior Kosher Act also had the effect of both advancing religion, namely the dietary restrictions of Orthodox Judaism, and inhibiting religion, by preventing labeling of food products as kosher that did not meet the Orthodox Jewish religious requirements. Id. at 430.

Following this Court's decision, the New York State Legislature passed the Kosher Law Protection Act of 2004. N.Y. Agric. & Mkts. Law §§ 201–a–201–d; see also Kosher Act. This law repealed certain sections of the prior Kosher Act and added three new sections, 201–a, 201–b, and 201–c, which retained—in revised form—certain provisions of the former law. See Kosher Act §§ 3–4.4 The new Kosher Act imposed requirements on sellers and manufacturers that market their food products as “kosher” to label those foods as kosher and to identify the individuals certifying their kosher nature, but did not define kosher or authorize state inspectors to determine the kosher nature of the products. See generally id. In promulgating this new law, the Legislature noted that “a significant number of consumers within the state seek to purchase food products that are kosher, and that many of those consumers do so for reasons unrelated to religious observance.” Id. § 2. The Legislaturefound it “essential that consumers be provided clear and accurate information about the food they are purchasing, and that this goal is furthered by requiring vendors of food and food products represented as kosher to make available to consumers the basis for that representation.” Id.

II. Procedural History

The plaintiffs initiated the current suit on February 15, 2008, challenging the constitutionality of the new Kosher Act and alleging that the law discriminated against non-Orthodox Jews and impermissibly gave the state a supervisory role over what is “kosher.” Specifically, the plaintiffs claimed that the labeling requirements of the Kosher Act violate the Establishment Clause because there is no halachic (Jewish Law) requirement that to be considered kosher all food must bear a label stating it is kosher, and certain non-Orthodox Jews wish to market and purchase particular kosher foods without a kosher label or designation. The plaintiffs contended that by adopting a labeling requirement, the challenged statutes discriminate against non-Orthodox Jews and some kosher food purveyors. The plaintiffs also argued that the inspection provision that grants the Department of Agriculture the authority to inspect all food establishments for compliance with the Kosher Act directly or indirectly involves an analysis of the acceptability or reliability of the “kosher nature” of the food that is sold.5 Additionally, the plaintiffs claimed that the Kosher Act violates the Free Exercise Clause because it constitutes an impermissible regulation of a religious practice—whether a product is kosher—and was not the least restrictive means of preventing fraud. Finally, the plaintiffs argued that the language of the Kosher Act is unconstitutionally vague.

On August 3, 2011, the district court granted the defendants' motion to dismiss the plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), finding that the Kosher Act did not violate the Free Exercise and Establishment Clauses of the First Amendment and was not void for vagueness. See Commack Self–Serv. Kosher Meats, Inc. v. Hooker, 800 F.Supp.2d 405, 414–15, 417 (E.D.N.Y.2011). The district court concluded that the New York State Legislature passed the Kosher Act for a valid secular purpose—namely the need to protect consumers from fraud in the kosher food market. Id. at 413. The district court also concluded that, unlike the prior version of the Kosher Act, this legislation is “purely a labeling and disclosure law” and neither endorses a particular religious viewpoint nor creates an impermissible entanglement with religion. See id. at 413–14. The court pointed out that the State does not have the authority through the Kosher Act to determine if a product is kosher under religious law, and the KLED inspectors do not have the authority to verify whether foods are “acceptably kosher.” Id. at 414–15. Similarly, the district court held that the Kosher Act does not impermissibly regulate a religious practice in contravention of the Free Exercise Clause because the State does not determine whether a product is kosher. Id. at 415. The court also concluded that the Kosher Act was a law of general applicability, with only the incidental burden on producers and retail vendors of labeling and disclosing information regarding the qualifications of their kosher certifier. See id. at 416. As such, the district court found that the State need only have a rational basis for its enforcement of the Kosher Act, a test the district court deemed the Kosher Act met. See id...

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