Last week, the 2nd U.S. Circuit Court of Appeals upheld New York State's Kosher Law Protection Act. Commack Kosher, a deli and butcher shop, challenged the law, claiming it violated the establishment clause of the U.S. Constitution. In rejecting the constitutional claim, the court offered a novel analysis of what distinguishes “religious” from “secular.”
The law mandates several disclosure requirements. In relevant part, it requires any food establishment that represents itself as kosher (1) to post a kosher certification form on premises; (2) to label all packaged kosher food as “kosher” and (3) to identify the name of the person or entity certifying such food products as kosher. N.Y Agric. & Mkts. Law § § 201-(1)-(2). Failure to comply with these requirements results in a fine as well as public disclosure of the violator.
Commack Kosher argued that the law violates the establishment clause because it was intended to promote Orthodox kashrut practices. It argued that displaying a kosher certification is only an Orthodox practice (Commack Kosher’s kashrut supervisor – a Conservative rabbi – does not require it). And because the law requires nothing other than labeling, the legislature could only have intended to favor an Orthodox practice. (It should be noted that the Speaker of the New York State Assembly is an Orthodox Jew.)
Surviving an establishment clause challenge requires that the law, among other things, "have a secular legislative purpose." Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). A law fails this test when only religious considerations motivated the legislature to pass the law. Lynch v. Donnelly, 465 U.S. 668, 680 (1984). But the law will be upheld if the legislature justifies it with a sincere secular purpose – even when the law simultaneously serves a religious purpose. For example, the Supreme Court upheld a state’s Sunday closing law because it furthered the secular purpose of providing a uniform day of rest; the fact that Sunday is also of particular significance to Christians did not erase that secular goal. McGowan v. Maryland, 366 U.S. 420, 442 (1961).
New York maintained that the legislature’s purpose was purely secular in that its purpose was to protect against consumer fraud. Labels inform the consumers what kashrut standards the store uses. Moreover, the law does not impose any specific standard (such as Orthodox standards). Instead, food can be sold as kosher pursuant to any certifying criteria as determined by any certifying party – based on religious principles or not – so long as accurate information is made available to consumers.
The Second Circuit agreed that the law had a secular legislative purpose, but employed its own rationale in its holding. It considered significant the fact that most consumers of kosher food – over 80 percent – buy it for reasons unrelated to religious observance. These consumers choose kosher for a variety of reasons. For example, vegetarians buy “parve” kosher food because it contains no meat. Because the kosher industry mainly serves secular interests, the Court reasoned that protecting against fraud in the industry mainly serves a secular purpose.
There are two significant points to make here.
First is that the Court left open an important question: Can a law protect against consumer fraud for a product people buy for exclusively religious reasons? Consumer fraud protection should be a valid secular purpose no matter what the reason consumers buy a product. Suppose there was massive consumer fraud in the rosary industry. Is the state powerless to stop it?
The second point is how a religious ritual – kashrut – can evolve into a mainly secular practice (for the purpose of an establishment clause claim). This evolution apparently occurs when more people value the practice for secular purposes than those who value it for religious purposes.
According to this logic, one can argue that many nominally religious practices should instead be regarded as secular. For example, some parents send their kids to religious schools for purely secular reasons – perhaps because the school’s secular education exceeds that of the public school alternative. Indeed, the Supreme Court accepted a state’s claim that a private school voucher program served a valid secular purpose, even though most parents chose religious private schools. Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002).
The first point could mean that the Second Circuit just made proving a secular purpose more difficult. This is because a secular cause – like protecting against consumer fraud – may not be good enough if the law benefits people motivated to act on religious objectives. The second point, instead, offers a new avenue for proving a secular purpose. The Court held that people’s perceptions can change a purely religious practice into a secular one.