The High Court of Justice offered little hope Sunday to several restaurants that have asked it to end the Chief Rabbinate’s monopoly over the word “kosher,” with all three justices on the panel criticizing the restaurants’ position at a hearing.
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Currently, restaurants cannot describe themselves as kosher unless they have a certificate from the rabbinate. Nevertheless, Attorney General Yehuda Weinstein recently ruled that restaurants can declare themselves to be under rabbinical supervision, as long as they don’t actually use the word “kosher” and make it clear that their supervision doesn’t come from the official rabbinate. But the restaurants in question rejected this compromise and petitioned the court to let them use the word “kosher.” All are supervised by Hashgacha Pratit, a private kashrut certification organization founded recently by Rabbi Aaron Leibowitz of Jerusalem.
Justices Uri Shoham, Elyakim Rubinstein and Noam Sohlberg showed scant sympathy for their position at Sunday’s hearing. Shoham said the justices had consulted among themselves and agreed that the petitioners seemed to be demanding too much.
“The state offered a compromise,” Shoham said, referring to Weinstein’s recent ruling. “The rabbinate vehemently opposes it. You say it doesn’t satisfy you. In the end, even this [compromise] proposal will be blocked by legislation; that’s how it seems to me.”
The ultra-Orthodox Shas party has already proposed such legislation, though whether it will pass is unclear. So far, the bill hasn’t even passed the first stage of the legislative process – discussion by the Ministerial Committee for Legislation. And in response to a question from Rubinstein, government attorney Netta Oren said the Justice Ministry believes the bill as it stands is unconstitutional.
The petitioners, represented by attorney Ricki Shapira Rosenberg of the Reform Movement’s Israel Religious Action Center, argued that a 1983 law which declares it fraudulent for a restaurant to term itself kosher without rabbinate certification violates the Basic Law on Freedom of Occupation.
But Rubinstein deemed this argument weak, pointing out that nothing in the law prevents restaurants from preparing or selling whatever food they please; the only restriction is whether they can use the word “kosher” to describe it.
Sohlberg agreed. “The restriction isn’t on freedom of occupation,” he said. “Perhaps there’s a restriction on freedom of expression, because you want to present yourselves as kosher in writing. But when it comes to restricting [speech] in the commercial field, that isn’t so protected.”
Rubinstein added that it wasn’t unreasonable for the state to impose some kind of regulation on kashrut. “Today the people you represent will write ‘Hashgacha Pratit’ by Rabbi Leibowitz,” he told Shapira Rosenberg. “Tomorrow it will be somebody else saying ‘My place is kosher.’ They’ve appointed a regulator. You can like him or not, criticize him or not. But this regulator says, ‘I’m the regulator to whom the law gave the authority to say what is kosher and what isn’t.’”
Oren, the government attorney, presented Weinstein’s position. “Our demand is that at first glance, any person can see that this isn’t a [rabbinate-issued] kashrut certificate,” she said.
But since the rabbinate disagrees with Weinstein’s position, the court took the unusual step of letting it hire its own lawyer to represent it. That lawyer, Harel Goldberg, argued that no restaurant should be allowed to present itself as kosher in any way without a rabbinate certificate, even if the restaurant doesn’t actually use the word “kosher.”