The Refusal of U.S. Courts to Say What’s Kosher Is a Double-Edged Sword

May 27, 2022 | Michael A. Helfand
About the author: Michael A. Helfand is an associate professor at Pepperdine University School of Law and associate director of Pepperdine’s Diane and Guilford Glazer Institute for Jewish Studies.

Last week, a New York state judge dismissed a lawsuit brought by a Long Island kosher restaurant called Chimichurri against the local Vaad Hakashrus, or kosher-supervision council. Michael A. Helfand explains the facts of the case, and the complex constitutional issues behind the judge’s decision:

According to the complaint, Chimichurri ended its five-year relationship with the Vaad in July of 2020, choosing instead to use Mehadrin, a different kosher-certification company. The restaurant claims the Vaad retaliated by circulating a letter falsely claiming that it was no longer kosher, which Chimichurri said led to $150,000 in lost revenue over a year.

Chimichurri’s claim, legally, hinged on the word “falsely,” which raises the specter of what, exactly, is kosher—a red flag for the court. . . . Whose description of the facts is correct? The pursuit of that question could run afoul of what is often termed the “religious-question doctrine,” which prohibits judges from resolving issues of religious practice.

There are many different—and, sometimes, competing—justifications for this doctrine. But maybe the most intuitive version is that when a court picks one religious view over another, it is using the coercive power of the state to determine which version of a faith is the true faith. And that is tantamount to establishing religion, in contravention of the First Amendment. This is why most courts have, for the past 70 years, consistently refused to resolve kosher cases.

Current constitutional doctrine thankfully ensures good-faith kosher certifiers and rabbinic leaders can, without fear of judicial reprisal, clearly express their views on religious standards within their communities. At the same time, it also means that courts will often lack the tools to root out actual fraud—that is, actual attempts to falsify the kosher standing of food. . . . And that ultimately means that it is up to the Jewish community to build the kinds of institutions that will both ensure the viability and protect the integrity of the kosher marketplace.

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