Transterrestrial Musings

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I can find at least two cases where kosher laws have been found unconstitutional.

Posted by JP Gibb at April 24, 2007 12:03 PM

Apparently, New Jersey is an equal opportunity Yenta State.

Posted by teej at April 24, 2007 12:12 PM

Do they have a similar requirement for what is, and isn't kosher?

Yes, 22 states have anti-fraud laws regarding kosher food; in particular, both New Jersey and Illinois do.

I can find at least two cases where kosher laws have been found unconstitutional.

Except that what is unconstutional is the particular terms of certain kosher laws that favor some sects of Judaism over others. The Supreme Court did not say that kosher laws in and of themselves are unconstitutional. It is evidently constitutional for a state to accept kosher registrations if it doesn't pass judgment on standards. Some of the states understand are now extending the same system to halal food. In fact the New Jersey halal law is an amendment to an existing kosher law.

If they do, it's just as bad.

I'm glad that you can take a stand against Judaism, Rand. I don't agree with you, but it does make you an independent thinker.

Posted by at April 24, 2007 12:18 PM

Sounds like a fair use of government inspection standards.

Not the most important priority of government, but, within
the duty of government to set weights and measures.

Posted by anonymous at April 24, 2007 12:30 PM

Actually, maybe I don't completely disagree. It is perfectly legal for states to ban food that is falsely labelled with religious standards, because that's an obvious case of fraud. However, it would be better to change all such laws to be completely non-denominational. So you could make a case that all 22 states with kosher laws are at variance with the Constitution unless they also expand those laws to include halal, Hindu vegetarianism, etc.

While we are at it, I would ask why Good Friday is a state holiday in 11 states.

Posted by at April 24, 2007 12:30 PM

Sounds like a fair use of government inspection standards.

I don't agree. Bearing in mind that I don't even think that the state should be inspecting for any reason (I'm a libertarian in that regard), even if one accepts the argument that the state should inspect for health or weight fraud, it's not the responsibility of the state to keep people right with God. Or Allah.

Posted by Rand Simberg at April 24, 2007 12:37 PM

Mr. Simberg;

It's not about keeping people right with God/Allah/etc., but with each other. If person A labels food "halal", that's effectively a contract with purchaser B. I thought even libertarians were in favor of contract enforcement being a duty of government.

Posted by Annoying Old Guy at April 24, 2007 12:45 PM

There is a whole page devoted to the constitutionality of Kashrut laws here:

http://www.jlaw.com/Summary/kashrut-commercial.html

The gist of it is that Kashrut laws protect religious freedom, rather than establishing religion, as long as the government restricts its role to an anti-fraud referee and does not endorse specific standards.

But hey, Rand, if you want to argue against rabbis in court, you're entitled. I half-agree; see above.

Posted by at April 24, 2007 12:50 PM

The problem is that it is not the government's role to determine what is "halal" or "kosher." And without such a determination, there's no legal case for contract resolution. That, in fact, is exactly what the story is about--the inability to determine what "halal" means with any level of consensus.

This is a religious issue. If someone gets food that is supposedly "halal" and isn't, they should take it up with the local mosque, or simply stop purchasing from that provider. This is something that has to be enforced within the religious community, not by the state.

There are private solutions to this problem, and unlike salmonella, it is not something of concern to the state.

Posted by Rand Simberg at April 24, 2007 12:50 PM

There is a whole page devoted to the constitutionality of Kashrut laws here:

http://www.jlaw.com/Summary/kashrut-commercial.html

But hey, Rand, if you want to argue against rabbis in court, you're entitled. I half-agree; see above.

Posted by at April 24, 2007 12:54 PM

Whose definition of halal (or for that matter kosher) should the government choose?

Well, you have a point there, the only problem being, again, that the lion's share of the question is kosher laws, not halal laws.

The only workable path for this it to accept registrations for certification. Then you could say that the food is kosher according to X or halal according to Y. The fraud standard would be clear, namely, it passes the buck to the certifying authorities.

Now, I don't know if the national network of kosher laws really work that way, but I agree that they should. And that all state kosher laws should be expanded so that they are entirely non-denominational, or repealed.

There's a much better consensus on what day Good Friday is, and there is a huge majority of people who celebrate it,

A majority? Sorry, only a plurality of Americans observe Good Friday at the most, not a majority. Yes, the definition of Good Friday is clearer, but more practical is not the same as more Constitutional. In this case, it's the opposite.

Posted by at April 24, 2007 01:17 PM

"Well, you have a point there, the only problem being, again, that the lion's share of the question is kosher laws, not halal laws."

Why is that a _problem_, anonymous? Rand said that he doesn't make a distinction between Islam and Judaism on the subject of whether the government should be enforcing religious dietary strictures. The only way that the majority of case law being related to Jews versus Muslims is if you have a problems with Jews per se, as far as I can tell.

Posted by Rick C at April 24, 2007 01:44 PM

The only way that the majority of case law being related to Jews versus Muslims is if you have a problems with Jews per se, as far as I can tell.

I don't have a problem with the laws themselves or with Jews. Rand is the one who is making an issue out of it. My only position is that the laws should be made non-denominational, and delegate standards to certification agencies.

My point is that most of these laws on the books, and even more, most of their enforcement, is for kosher food, not halal food. The laws at least to 1925, which was the date of a court challenge over them. It would be wrong to be up in arms about religious dietary statutes only when, 75 years later, some Muslims enter the picture.

Posted by at April 24, 2007 02:02 PM

I'm going to part ways with Rand here. One of the few useful functions the state does have in a libertarian viewpoint, with which I'm in sympathy, is maximizing the information available to the market. That's why folks like NIST (National Institute of Standards and Technology), who define weights and measures, are normally beloved by libertarians almost alone among government agencies.

NIST defines the word "mile" or "kilogram" for certain uses, and the Federal gummint, under its explicit Constitutional right to regulate interstate commerce, then says you can't use the word in commerce without agreeing you're liable for any deviations from NIST's definition. Id est, if I advertise my car as getting so many "miles" per gallon, those "miles" better be 5280 feet per, or I'm screwed if someone sues me for false advertising. That doesn't mean I can't use "mile" in some other way not in the context of commerce. As a poet I'm free to speak of metaphorical miles, for example. No government agent will measure 'em.

In this case, I presume "halal" like "kosher" or "organic" or "stainless steel" has a generally accepted meaning which relates to the content and/or preparation of the stuff. Whether it's important in a religious context or not is not relevant, because it is important in the context of commerce. The market differentiates between products so labeled and others not, just like there's a differential between 38 miles/gallon and 28.

In other words, we don't care why people want to make the distinction. That's not government's job. We only care that they do, that it affects commerce, and that the distinction is objectively measurable and quantifiable. Under those cirx, I think it's a reasonable function of government to define the word for commercial purposes precisely, and put people on notice that if they don't use it in commerce with that exact meaning, they're in trouble.

Personally, I would prefer running it more as a protection racket. Government says go ahead and use the word for free if you like, and by the way here's precisely what we tell people it means. Registration and filling out forms is totally optional. But if you do fill out the forms, pay the fees, submit to random inspection, whatever, then you have a strong presumptive defense if someone sues you for false advertising and fraud.

Posted by Carl Pham at April 24, 2007 02:04 PM

It would be wrong to be up in arms about religious dietary statutes only when, 75 years later, some Muslims enter the picture.

OTOH, it is apparent that Rand wasn't aware of the government-sanctioned nature of kosher food in some US states and that his current stance seems consistent and fair. Namely, the state shouldn't have a role in determining what is halal and/or kosher.

Incidentally, there's also "organic" as another such category (with Environmentalism being the respective religion).

Posted by Karl Hallowell at April 24, 2007 03:03 PM

Until I knew about the kosher regulations myself, this seemed to me to be a way for the government to keep tabs on muslims under the guise of protecting consumers. Now I'm not sure, and I'm not sure if the laws should be re-written non-denominationally or what should happen with them.

Posted by John Breen III at April 24, 2007 03:49 PM

A minor point, but nevertheless, no one CELEBRATES Good Friday. One fasts and prays on Good Friday as appropriate to ones denomination. Only one who rejoices in the vile act of the crucifixion of Christ could possibly celebrate it. Those of us Christians celebrate the resurrection of Christ for which the crucifixion was a necessary preamble. It is Good in that sense.

Posted by Offside at April 24, 2007 04:35 PM

Just out of curiosity, which states have Good Friday as an official holiday?

When I was a kid, back when dinosaurs roamed the earth, that may have been true -stores closed on Sundays - , but I've lived in PA, NJ, OH, TX, CA, and OR, and I've never had the day off.

Posted by bud at April 24, 2007 06:23 PM

Carl,

The problem is, there isn't much of a consensus on "kosher." There are many, many questions which even two Orthodox rabbis would answer differently, never mind differences between Orthodox and Conservative opinion.

The best solution, in my opinion, is to keep the government out of it. Kosher packaged foods have a Hechsher (kosher mark) and Jews who care know which hechsers they accept for what foods. Kosher restaurants always list the Vaad (authorizing body) or Rabbi that certifies the restaurant, and again, they know where they can eat and where they can't. New York City is probably the only place in the world where there's enough of a multiplicity of authorities to make things confusing.

Posted by Eric J at April 24, 2007 06:32 PM

I'm glad that you can take a stand against Judaism, Rand.

I'm not "taking a stand against Judaism," you anti-semitic moron. I'm taking a stand for the First Amendment.

Posted by Rand Simberg at April 24, 2007 08:25 PM

Just out of curiosity, which states have Good Friday as an official holiday?

CT, DE, HI, IN, KY, LA, NJ, NC, ND, TN. That's actually only 10. I miscounted Puerto Rico as a state. There is also Guam. All of this is according to http://www. infoplease.com/ipa/A0002069.html .

Good Friday, by the way, is not the only example of blatant violation of the religion clause of the First Amendment. One of the most blatant was the 1955 federal law that put "In God We Trust" on paper money. It begs the question, what part of "Congress shall make no law" they didn't understand. Or that the Supreme probably still doesn't understand; they would probably refuse call it unconstitutional today. They would probably cut off challenges by denying standing.

Posted by at April 24, 2007 08:55 PM

"In God We Trust" has been appearing on US coins since the Civil War, though not without some opposition over the years. Which law required it on paper money?

Posted by Larry at April 24, 2007 09:55 PM

Larry: The 1955 law was HR 619; see http://www.aclj.org/News/Read.aspx?ID=489 .

I was right that the courts would rule this law constitutional; however I was wrong about which court or when. The phrase was ruled constitutional in 1970 in Aronow v United States by the 9th Circuit Court. The Court said that it was "obvious" that "In God We Trust" on money was ceremonial or patriotic rather than religious; see

http://en.wikipedia.org/wiki/Aronow_v._United_States

Personally I am disgusted, but maybe not quite surprised, to see federal courts resort to argument by obviousness. It seems that it was obvious to everybody other than the Congressmen who passed the law. One of them said in the Congressional Record, "At the base of our freedom is our faith in God and the desire of Americans to live by His will and His guidance." Does that sound like simple ceremony?

Besides, we could change it to "In Allah We Trust" and see how the federal courts, or American Christians generally, would like that.

Posted by at April 24, 2007 10:37 PM

The best solution? Define halal meat, very carefully, in law. And then make sale or production of it illegal.

No concessions to the barbarians.

Posted by Fletcher Christian at April 25, 2007 12:57 AM

Re christmas, just because a large majority celebrate it doesn't mean that it is right to have it as a holiday.
My previous employer always made a point of scheduling mandatory meetings and such on thanksgiving and christmas. Those that insisted on skipping the meetings because of their religious beliefs were penalyzed when the yearly reviews came out. We tended to work a lot of Sundays too.
There should be NO exceptions to the rule. If the holiday is religious, there should not be any government recognition of it. The same goes(a little OT) to allowing clergy in the military.

Posted by Don at April 25, 2007 03:04 AM

Well, in that case Don, we should stop observing Memorial Day, as there are some religions that don't believe in an afterlife. In that case, what's the point in celebrating our dead?

Who was your previous employer that had mandatory meetings on Thanksgiving, and penalised employees that decided to spend time with their families? Who uses a religious reason for observing Thanksgiving anyway? What religion is it tied to?

Posted by John Breen III at April 25, 2007 07:54 AM

Since I frequently read your blog and respect your work, I ask that you refrain from using the term "separation of church and state." There is no such requirement in the Establishment of Religion clause in the First Amendment (and yes, you're probably aware of that distinction too). This shorthand and wildly imprecise and inaccuate term unfortunately is being employed in our popular culture to transform that clause to do the bidding of those who would like to achieve that result. The more that unfortunate term is used, the more damage is done.

Posted by Brad at April 25, 2007 08:37 AM

Trademark law seems more appropriate than fraud law.

Posted by Andy Freeman at April 25, 2007 08:59 AM

This shorthand and wildly imprecise and inaccuate term unfortunately is being employed in our popular culture to transform that clause to do the bidding of those who would like to achieve that result.

How inaccurate can it really be, when it's Jefferson's own words?

"I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between Church and State."

Posted by at April 25, 2007 09:08 AM

To 9:08AM:

Jefferson's comments are not in the Constitution, and represent no more than his own viewpoint. He is indeed due great respect. His comments, however, are comparable to legislative history, and we all know where that source can lead.

Posted by Brad at April 25, 2007 10:11 AM

so what about USDA organic food standards?

Posted by at April 25, 2007 03:55 PM

> And to the poster who asked why Good Friday is a state holiday, beats me. I
> don't think that the government should be granting religious holidays, either.

Probably for the obvious reason that government employees in those states wanted it off. State governments have to deal with worker relations just like any other employer.

Tell civil servants they have to work on Christmas Day and you'll have to deal with the unions. Besides, there would be little demand for many government services on widely observed religous holidays. Apart from someone like Mr. Anonymous trying to make a political statement, who would show up at the DMV to renew their driver's license on Christmas Day? Why pay to keep the building open?

(Also, "Congress shall make no law..." does not apply to state governments because state laws are not made by Congress. If Mr. Anonymous figures that out difference, I'm sure he'll tell us it's another reason why America stinks. :-)

Posted by Edward Wright at April 25, 2007 04:05 PM

> In order to prove that fraudulent halal foodstuff was purchased, the
> government must prove that said foodstuff was not halal. In order to do that,
> the government must provide a legal standard as to what is, and what is not,
> halal.

There's no reason why a group can't create a Halal trademark, similar to the Orthodox Union Kosher trademark for foods or Underwriter Labs trademark for electrical appliances.

Then, anyone using the trademark without permission can be prosecuted for fraud. No special law needed. I don't see why there's a need to fill out a government "halal permit" and paying an additional tax.

Posted by Edward Wright at April 25, 2007 04:44 PM

Ever wonder about ketchup and catsup? How about "real" mayonaise and "imitation"? They have very precise definitions and fall under copyright law more than anything else. Me? I taste test by brand then don't pay attention to the label. It would seem to me that legal protection of brand (generic) should be confined to things that are objectively measureable. Proscriptions of process are magnets for frivolous litigation.

Posted by Roy Lofquist at April 25, 2007 05:18 PM

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