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September|October 2002
An Odd Bird By Stéphanie Giry
Busting Chops By Katherine Marsh
The Demon of Andersonville By Carolyn Kleiner

Busting Chops

Katherine Marsh on who gets to decide what's kosher.

By Katherine Marsh

Commack Kosher Deli & Market is owned by the brothers Yarmeisch, two butchers named Brian and Jeffrey. For many years, they called their Long Island company Commack Self-Service Kosher Meats because a majority of its business came from selling packages of lamb, ribs, veal, tongue, and poultry to local, mostly non-Orthodox, Jewish shoppers. But one day nearly ten years ago, a box of turkey thighs changed everything.

In February 1993, an inspector from the New York State Division of Kosher Law Enforcement named Philip Schnell walked into the Yarmeisches' refrigerator, examined a box of boneless turkey thighs, and eventually slapped Commack with a hefty fine. Schnell was enforcing the state's kosher fraud statutes, which since 1915 have governed the production and sale of kosher food in New York. The fine was the Yarmeisches' fourth in seven years, and it exhausted their tolerance for state regulation. They decided to challenge the statutes in court, arguing, in effect, that the state had no business weighing in on the religious question of what's kosher and what's not. In May, six years after the Yarmeisches launched their challenge, the Second Circuit Court of Appeals, which includes New York, ruled that the state's kosher laws are unconstitutional, agreeing with an earlier district court decision. Powerful supporters of the kosher laws have vowed to take their case to the Supreme Court, and in the meantime, the laws are still being enforced. But if the Supreme Court refuses to hear the case—or rules against them— the oldest kosher laws in the country will be thrown off the books.

Most supporters of the state's kosher laws are, not surprisingly, Orthodox Jews, while the Yarmeisch brothers and most of their backers aren't. The legal conflict between the two camps has its roots in a long-running struggle between the Orthodox and Conservative branches of Judaism over who has the right to say what it means to be Jewish. Orthodox Jews follow the precepts of religious law more strictly; Conservative Jews are observant, but they're more flexible. Both branches would like to be able to define the word kosher.
The fight over the kosher laws is also part of a broader debate about the constitutional separation between church and state. In recent months, the Constitution's Establishment Clause, which forbids excessive entanglement between state and religion, has been invoked in decisions permitting the use of school vouchers for religious schools and banning the words "under God" in the Pledge of Allegiance. As Americans think again about how high a wall they want between the government and institutional religion, the New York kosher laws case raises a related question: Should the government officiate disputes that pit one group of Jews—or Christians, or Muslims—against another?

On a recent Thursday morning, Brian Yarmeisch, who has brown spiky hair and a goatee, reenacted Philip Schnell's legendary inspection as his older brother Jeffrey, in wire-frame glasses and a white butcher's coat, hovered nearby. Brian sauntered past his meat cases, into a back room where an employee hacked away at shins of beef, and through the door of his meat refrigerator. "We had the box right here," said Yarmeisch, pointing to an empty spot that might as well be marked with a chalk outline of a turkey.

Schnell is one of nine state inspectors who make surprise visits once or twice a year to New York's kosher food purveyors to ensure that their wares meet the state's standards. He inspected the factory-sealed packages of kosher turkey thighs in the Yarmeisches' refrigerator, which the department subsequently declared were in violation of section 201-a(2) of the New York Agriculture and Market Law because the thighs were not individually marked "soaked and salted." The Department of Agriculture and Markets hit Commack with a steep $11,100 fine.

Similar violations had preceded this infraction. Once, an inspector spirited away Commack spareribs to the department's laboratories for testing. The results demonstrated improper soaking and salting. Another time, the department quarantined what the brothers thought was a perfectly kosher vat of lamb tongues. Again, the department claimed they had not been properly soaked and salted.

Soaking and salting, which draws blood out of the meat, is one of the key steps in making meat officially kosher. Although most Jews who soak and salt agree on the basics of the process, there are disputes over the finer points—the temperature of the water the meat is soaked in, for instance. The Yarmeisches protested that their tongues had been soaked and salted under the supervision of their rabbi, who is Conservative. The department retorted that, in any event, the tongues hadn't been properly de-veined—stepping right into another one of those finer-point disputes. While de-veining is required by the Orthodox, Conservative Jews can be more lenient. The department eventually dismissed the tongue violation.

The turkey-thigh citation, however, had devastating consequences. Tipped off by the state, Kashrus Magazine and The Jewish Press, two popular Brooklyn-based publications for kosher consumers, publicized the latest violations just before the Passover season, and Commack's large fine stood out. Perhaps because it believed it didn't have a strong defense, the department, which currently refuses to comment on the case, withdrew the citation about three months later. But the damage was done. A local Jewish center had told its members that Commack Kosher was unreliable. Business fell off. Customers no longer wanted to buy meat from the Yarmeisches' butcher shop. Eventually, the brothers decided to shift their emphasis from meat market to deli and catering. "Kosher food's about trust," Brian Yarmeisch said recently, taking a break in his deli seating area, which once housed only meat cases. "I had customers come in crying to me that their trust was broken by what they had read."

But some customers felt that the state had dealt the Yarmeisches an unfair hand. One of the loyalists was a lawyer named Robert Jay Dinerstein, who decided to contact prominent members of New York's Jewish community, including Sheldon Silver, now speaker of the New York State Assembly, to see what the community could do to help. Silver didn't respond, and neither did anyone else. So on their own, Dinerstein and the Yarmeisches decided to sue Rabbi Schulem Rubin, then director of New York's Division of Kosher Law Enforcement.

The crux of the Yarmeisches' argument was that by defining what's kosher according to "orthodox Hebrew religious requirements," the state was favoring Orthodox over Conservative Judaism. The laws, they reasoned, violated the Establishment Clause, which says that the government can't endorse or advance one religion over another.

The case galvanized the Orthodox community. Rubin's defense team included Nathan Lewin, an Orthodox lawyer who represented Richard Nixon when he wanted to be paid for the rights to his presidential papers and Jodie Foster when she was called to testify at the trial of John Hinckley. Lewin is one of the most prominent lawyers in Washington, D.C.

He has frequently taken on cases involving the Orthodox community, including a 1986 case in which he argued before the Supreme Court on behalf of an Orthodox rabbi who wanted to wear a kippa while serving in the Air Force. (The court said no.) More recently, he defended (unsuccessfully) the constitutionality of a publicly funded special-education program meant exclusively for Hasidic Jews in the village of Kiryas Joel, N.Y., and represented five Orthodox Jewish students who wanted to go to Yale without living in its coed dormitories (again unsuccessfully).

Assemblyman Silver also took the state's side, along with seven Jewish organizations and five other civic and religious leaders. To the Orthodox, this vigorous response was commensurate with what was at stake. The Commack case threatened the oldest kosher laws in the country. It also put at risk the Orthodox community's standing as the keeper of Judaism's true faith.

The basic kosher rules come from the Bible, and are spelled out in the late-15th-century Code of Jewish Law, called the Shulhan Arukh. For centuries, kosher supervision was handled by trusted members of the local community. In the late 19th century over a half million Jewish immigrants poured into the United States, and the Lower East Side became the kosher capital of the world. It was at this time, according to Harold Gastwirt's Fraud, Corruption, and Holiness, the definitive history of New York's kosher laws, that the state's kosher laws were born.

Kosher food often fetched a higher price than non-kosher goods and, with the burgeoning market for it, there was an increase in fraud. A Jewish housewife, shopping for a brisket of beef on the Lower East Side in 1899, had 131 butchers to choose from but no assurance that the meat she was getting was really kosher. Buying a non-kosher piece of meat was—and is—no small mistake: If an observant Jew accidentally cooks a non-kosher piece of meat, the entire kitchen has to be kashered, or cleaned according to religious requirements. Usually a lot of boiling takes care of the problem, but in the most extreme examples, knives with wooden handles have to be thrown out and ovens have to be cleaned with a blowtorch.

In 1915, after failed attempts to police the industry themselves, some of New York's Jewish leaders appealed to Albany for help. The resulting "Kosher Bill" set up a misdemeanor penalty for anyone who "sells or exposes for sale any meat . . . and falsely represents the same to be kosher, or as...sanctioned by the orthodox Hebrew religious requirements."

The bill faced a constitutional challenge in 1924 when the Hygrade Provision Company argued before the United States Supreme Court that the phrase "orthodox Hebrew religious requirements" was vague and failed to set reasonable standards that a company could follow in order to say its products were kosher. But the court concluded that "the term 'kosher' has a meaning well enough defined" and allowed the law to stand. At the time, the Conservative movement had less of a voice in American Judaism and so it didn't challenge Orthodox definitions. Over the years, New York State's laws became the model for similar ones in about 20 other states.

The relevance of the laws has changed in recent decades. According to Jack Lebewohl, the owner of the 2nd Avenue Deli, the largest kosher restaurant in New York City, the Division of Kosher Law Enforcement has had less real work to do lately because the once-diffuse kosher meat industry has consolidated. "There's only a handful of kosher slaughterhouses now," he explains. "There's no question of fraud with chickens. . . 90 percent of chickens today come from Empire"—the Tyson's of the kosher world.

Rabbi Yosef Wikler, the editor and publisher of Kashrus, points out that about 80 of the 105 violations issued by the department in 2001 carried fines of only $300. According to Wikler, the department can hand out penalties as high as $50,000 for big blunders, like selling pork in a kosher market, but most of the fines issued are for minor violations, like not properly identifying a product as kosher for Passover.

Today, there are numerous private and not-for-profit agencies that certify products as kosher, and consumers can look for the different seals on the kosher food they buy. Wikler, who likes to describe himself as the Ralph Nader of kosher food, believes that the focus should be on ensuring that companies who use these symbols on products have in fact been properly authorized to do so by a rabbi. Wikler also points out that while a century ago, Jewish shoppers bought most of their food directly from small merchants, today they purchase it in supermarkets. "The old-style kosher consumer needed to be protected as a market consumer," he said, "but now the consumer is buying pre-packaged food only, so that the bulk of what the state is doing is not helpful."

Menachem Lubinsky, the founder of Integrated Marketing Communications, a marketing agency that specializes in kosher food, disagrees. Over the past decade, he says, kosher consumers have come to include vegetarians and the lactose-intolerant (kosher food prohibits the mixing of meat and dairy). Kosher consumers now number 10 million people nationwide. In 1984 there were nearly 18,000 kosher products on the market. Today there are closer to 75,000, ranging from gourmet food to the recently certified kosher Oreo. Lubinsky believes that by authorizing inspections and fines for violations, the state's Kosher Laws have kept a booming industry honest. "The law merely defines the highest standards so that everyone can eat," he said, "I don't think it shows preference for a particular group."

The conservative movement started coming up with its own ideas about what's kosher after World War II, according to Joe Regenstein, a professor of food sciences at Cornell University. In addition to being less strict about de-veining, Conservative Jews also can eat a few foods outlawed by the Orthodox, like swordfish and sturgeon. As the Conservative movement in this country grew, some of these Jews resisted the Orthodox monopoly over the definition of kosher, pointing out that even Orthodox rabbis disagree on the finer points of kosher law. Or as Jack Lebewohl, crunching on a pickle in his deli, put it, "Kosher means kosher—if you say it means Orthodox, you insult every Jew."

Nathan Lewin, however, believes that the phrase "orthodox Hebrew religious requirements" was never meant to advance one branch of Judaism over another. According to Lewin, "orthodox" in this case refers not to a religious distinction but rather to the highest standard possible. "To most people, kosher means that this is something my grandfather would have eaten—take away the 'orthodox' and you start losing that standard," he said recently. "If you want to be Commack Kosher and go by a Conservative standard, then don't call your product kosher."

Lewin's argument that kosher equals Orthodox has failed before. In 1991, Lewin defended New Jersey's kosher statutes, which were a lot like New York's, against a challenge a lot like Commack Kosher's. In a 4-3 decision, the Supreme Court of New Jersey ruled that the state's kosher regulations violated the Constitution "by requiring strict compliance with the laws and customs of the Orthodox Jewish religion and by involving the government in disputes over kosher laws." Three years later, in a different case, a similar decision was handed down by the U.S. Court of Appeals for the Fourth Circuit in Maryland.

The U.S. Supreme Court refused to hear Lewin's defense in the New Jersey case— a setback he blames on New Jersey's decision not to join his appeal. In the New York case, with George Pataki pledging the state's support in fighting all the way to the Supreme Court—the governor counts the bloc of Orthodox Jewish voters among his backers—Lewin feels more optimistic that the court will agree to take the case.

If the court refuses once again to hear Lewin's argument, it is likely that New York will end up with the kind of rules now in place in New Jersey. There, purveyors of kosher food are required to post information about their kosher standards, and the state's job is to make sure they're following those standards. According to Conservative rabbi Perry Raphael Rank, the former president of the New Jersey Rabbinical Assembly, the new system works well. "It's no longer about going to an Orthodox or Conservative rabbi and getting an opinion on what's kosher," he said, "It's about making sure the establishment is doing what it claims."

New Jersey's Orthodox community has welcomed some aspects of the new laws. But because they maintain their own highly selective standards as to which kosher purveyors are acceptable, the change in regulatory systems has had little impact on Orthodox shopping habits. "The Orthodox people here don't care what the state does," said Rabbi Meier Brueckheimer, executive director of the Rabbinical Council of Bergen County. "They answer to a higher authority."

Katherine Marsh is a writer living in New York.

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