Ran-Dav's County Kosher, Inc. v. State

• Decision Date: 22 July 1992
• Docket Number: RAN-DAV
• Citation: 608 A.2d 1353,129 N.J. 141
• Court: New Jersey Supreme Court
• Parties: , 61 USLW 2077 'S COUNTY KOSHER, INC., a New Jersey corporation t/a County Kosher; Arthur Weisman and Nadine Weisman, individually and as officers and shareholders of Ran-Dav's County Kosher, Inc.; and New Jersey Alliance of Kosher Caterers, Plaintiffs-Appellants, v. STATE of New Jersey; Peter N. Perretti, Jr.; James J. Barry, Jr.; Rabbi Yakov M. Dombroff; Attorney General's Advisory Council on Kosher Food; Morris Glatt; Diane La Monaco; and Does 1-50, Defendants-Respondents, and National Jewish Commission on Law and Public Affairs, Intervenor-Respondent.

Page 141

129 N.J. 141

608 A.2d 1353, 61 USLW 2077

RAN-DAV'S COUNTY KOSHER, INC., a New Jersey corporation t/a County Kosher; Arthur Weisman and Nadine Weisman individually and as officers and shareholders of Ran-Dav's County Kosher, Inc.; and New Jersey Alliance of Kosher Caterers, Plaintiffs-Appellants, v. STATE of New Jersey; Peter N. Perretti, Jr.; James J Barry, Jr.; Rabbi Yakov M. Dombroff; Attorney General's Advisory Council on Kosher Food; Morris Glatt; Diane La Monaco; and Does 1-50, Defendants-Respondents and National Jewish Commission on Law and Public Affairs Intervenor-Respondent.

Supreme Court of New Jersey.

Argued May 7, 1991.

Decided July 22, 1992.

Eric L. Chase, Roseland, for plaintiffs-appellants (Hannoch Weisman, attorneys; Eric L. Chase, Genevieve K. LaRobardier, and Barbara E. Turen, on the briefs).

Andrea M. Silkowitz, Asst. Atty. Gen., for defendants-respondents (Douglas S. Eakeley, Acting Atty. Gen. of New Jersey, attorney; John T. Ambrosio and Nancy Costello Miller, Deputy Attys. Gen., on the brief).

Nathan Lewin, a member of the District of Columbia Bar, for intervenor-respondent (Greenberg & Epstein, attorneys; Edward J. Dauber and Ina B. Lewisohn, on the briefs).

Ronald K. Chen, for amicus curiae American Civ. Liberties Union of New Jersey.

Bruce D. Shoulson, for amici curiae The New Jersey Ass'n of Reform Rabbis, The Reconstructionist Rabbinical Ass'n, The New Jersey Region of the Rabbinical Assembly, The Rabbinical Council of New Jersey (Lowenstein, Sandler, Kohl, Fisher & Boylan, attorneys).

Meyer L. Rosenthal submitted a brief on behalf of amicus curiae The Anti-Defamation League of B'nai B'rith.

Robert Abrams, Atty. Gen. of the State of N.Y., submitted a brief amicus curiae, pro se.

Albert Burstein submitted a brief on behalf of amicus curiae American Jewish Congress (Herten, Burstein, Sheridan & Cevasco, attorneys).

The opinion of the Court was delivered by

HANDLER, J.

In this appeal the Court is confronted with State consumer protection regulations that incorporate a complex body of religious doctrine and contemplate the assistance by clergy or religious experts in the interpretation and enforcement of that doctrine. Those regulations are challenged under the Religion Clauses of the federal and state constitutions that define and govern the relationship between religion and state.

Under regulations administered by the Division of Consumer Affairs, the State regulates the preparation, maintenance, and sale of kosher products. The regulations state that it is "an unlawful consumer practice" to sell or attempt to sell food "which is falsely represented to be Kosher." They define "Kosher" as "prepared and maintained in strict compliance with the laws and customs of the Orthodox Jewish religion." Those regulations were invoked by the Attorney General, who brought an enforcement action charging Ran-Dav's County Kosher, Inc. (County Kosher) and its principal, Arthur Weisman, with violations. The charged parties denied the allegations and claimed that the regulations violated the Religion Clauses of the federal and state constitutions. The constitutional claims were brought before the Appellate Division while the trial court retained jurisdiction of the enforcement action.

A majority of the Appellate Division upheld the constitutionality of the regulations. Ran-Dav's County Kosher, Inc. v. State, 243 N.J.Super. 232, 579 A.2d 316 (1990). A dissenting opinion took the position that the regulations were unconstitutional. Id. at 259, 579 A.2d 316. The issue is whether the kosher regulations facially violate the provisions of the federal and state constitutions that prohibit government establishment of religion. The constitutional issue is substantial, and the dissent brings the appeal to this Court as of right. R. 2:2-1.

We hold that the kosher regulations violate the Establishment Clauses of the federal and state constitutions. Our primary ground for that holding is that the regulations impose substantive religious standards for the kosher-products industry and authorize civil enforcement of those religious standards with the assistance of clergy, directly and substantially entangling government in religious matters.

I

The difficult and unusual issue presented on this appeal calls first for an explanation of the subject matter of the challenged regulations and an analysis of the regulatory standards and enforcement procedures. That explanation will inform the inquiry into whether the regulatory scheme takes government too far into the religious domain.

Regulations governing the kosher-foods industry were promulgated in 1984 by the Division of Consumer Affairs under the authority of the Consumer Fraud Act, N.J.S.A. 56:8-4. The regulations make it "an unlawful consumer practice" to sell or attempt to sell food "which is falsely represented to be Kosher." N.J.A.C. 13:45A-21.2.

The word "kosher" (from the Hebrew "kasher") means "fit" or "ritually correct." It is used to refer to, among other things, the Jewish dietary laws. The practice of "kashrut" within Judaism serves to attain "kedusha" or holiness and is a fundamental tenet of the religion. The origin of the kosher laws can be traced back to the Torah (the first five books of the Bible), but most of the laws concerning what is kosher have developed through centuries of Talmudic debates (debates regarding the application of the principles contained in the Torah) and rulings by rabbinic scholars. The dietary laws of "kashrut" set forth rules covering "(1) permitted and forbidden animals, (2) forbidden parts of otherwise permitted animals, (3) the methods of slaughtering and preparing permitted animals, (4) forbidden food mixtures, and (5) proportions of food mixtures prohibited ab initio but permitted ex post facto." 243 N.J.Super. at 241, 579 A.2d 316 (quoting 8 Encyclopedia of Religion 270-71 (1987)). The laws of kashrut are complex and exacting. For example, animals must be slaughtered in a prescribed manner by a trained person. Meat must be "koshered" according to specifically defined soaking and salting methods to draw out the blood. Ibid. Central to the doctrine of "kashrut" is the requirement of the "mashgiach," the religious authority who must supervise kosher butchers and certify compliance with the laws of kashrut. Without proper religious supervision, certain foods are simply non-kosher, even though constituted and prepared in identical fashion to kosher foods.

The court below suggested that there is universal agreement among the branches of Judaism that the standards governing the preparation and sale of food are those of Orthodox Judaism. Ibid. In fact, however, there is considerable disagreement over what precepts or tenets truly represent the laws of kashrut. There are differences of opinion concerning the application and interpretation of the laws of kashrut both within Orthodox Judaism and between Orthodox Judaism and other branches of Judaism. Herman Wouk, This Is My God (1959), reprinted in The Life of Torah 98-99 (Jacob Neusner ed., 1974). See Rabbi Hayim Halevy Donin, To Be a Jew 102-104, 112-119 (1972); Rabbi J. David Bleich, Contemporary Halkhic Problems 84-92 (1977). Some disputes arise in light of new technologies used in the preparation of foods. Bleich, supra, at 86-92. Other disputes arise because many members of the non-Orthodox branches of Judaism take divergent approaches to the adherence to the laws of kashrut, considering certain foods to be kosher even when not prepared in the strictest compliance with certain commonly accepted principles. Wouk, supra, at 99. See Donin, supra, at 103-04, 118-19.

Controversies over kosher products center not only on the nature of the products themselves but on the persons supervising their preparation. Wouk, supra, at 99; Donin, supra, at 112, 115, 118. Disputes constantly arise within Orthodox Judaism over the legitimacy of the various religious authorities purporting to ensure that food is kosher. See, e.g., Kashrus Magazine, September 1990, 26-32 (publishing a "Seven Page Guide" of over 100 rabbinically-supervised kosher supervision services worldwide, but withholding endorsement of any particular service with the following disclaimer: "Some of the [supervision services] are not relied upon by most of the kosher world. Consult your rabbi for which symbols you should use.").

Because the laws of kashrut are so complex, compliance with them is highly labor intensive. Kosher food therefore costs more than non-kosher food. Because of those higher prices, and because most consumers cannot determine whether foods labeled as "kosher" were prepared under "kosher standards," unscrupulous vendors can reap substantial profits by misleading consumers into believing their products are kosher. 243 N.J.Super. at 251, 579 A.2d 316.

The false promotion of non-kosher foods harms a variety of consumers. Observant Jews may be induced, unwittingly, to break the laws of their religion. Kosher foods are important not only to Jews but to many other persons as well. Adherents to certain other faiths, especially those forbidding the consumption of pork, purchase kosher food to comply with their own religious requirements. People with particular health problems, such as shellfish allergies, buy kosher products to avoid troublesome food. Finally, some members of the general public believe that kosher meat is superior to non-kosher meat because it is prepared under especially close scrutiny. Id. at 247-48, 579 A.2d 316.

Those concerns are reflected in the social impact statement accompanying the initial adoption of the kosher regulations:

The preparation of Kosher foods involves certain slaughtering and sanitary procedures and often results in a more expensive food product. These rules make it illegal to falsely represent food as Kosher or Kosher for Passover and thus protect the consumer who, for reasons of religion, conscience, quality or health, intends...