Who Says What's Kosher?

by William McGeveran

Wednesday, August 19, 2009 at 11:24 AM EDT

The ACLU has filed an interesting lawsuit in Georgia challenging the state’s kosher labeling laws. At first I thought the argument was that the state could not crack down on deceptive labeling. But it turns out, as the ACLU’s complaint makes clear, that there is not consensus about the requirements of kashruth among Jews (particularly between Orthodox and others, but even among different Orthodox sects). This forces the state to choose sides in essentially theological disputes, which, the ACLU quite sensibly argues, entangles the government in religion and constrains the religious freedom of rabbis and others who choose to practice a form of kosher observance different from whatever the state defines. Indeed, the plaintiff in the ACLU’s case is a conservative rabbi who would serve as a mashgiach (arbiter of kosher standards), but cannot because he disagrees with some of the state’s interpretations. The Second Circuit struck down a similar New York law based on these arguments (Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2d Cir. 2002)).

These lawsuits would seem to be a boon for private entities that verify conformity with kosher laws, because consumers will need someone else to step in where the government cannot. Through the enforcement of certification marks, private groups can protect their distinctive seal of approval without violating the First Amendment. And indeed, as a New Yorker I know the intertwined “OU” symbol of the Orthodox Union indicating approval of a kosher product — based on their web site, they are very busy treif busters these days.

[UPDATE: I noticed after I published this that it is the 500th post on Info/Law. Hooray! ]

This article originally appeared on Info/Law.