On August 6, 2009, a Conservative rabbi filed a lawsuit was filed against the State of Georgia, charging that the state’s Kosher Food Labeling Act violated both the state and U.S. constitutions.
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The Kosher Food Labeling Act, written in 1980, stated that any prepared food sold as kosher in Georgia had to abide by “orthodox Hebrew religious laws and requirements.” Establishments presenting and selling food as “kosher” that didn’t meet the specifications of Orthodox kashrut authorities ran the risk of incurring criminal sanctions.
The suit was brought by Rabbi Shalom Lewis, the leader of Congregation Etz Chaim, in Marietta, Georgia, and a Conservative mashgiah (kashrut inspector) for both a local bakery and restaurant, and also for events at his synagogue. He claimed that the law discriminated against him by preventing him from doing his job – that is, offering kashrut rulings on the basis of the interpretation of Conservative Judaism.
Lewis was supported in his lawsuit by the American Civil Liberties Union, a non-partisan organization that defines its task as defending “the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.” By making Orthodox definitions of kashrut the guide for sale of non-packaged kosher food in the state, argued the plaintiff, Georgia was in violation of a number of different clauses of both the U.S. and state constitutions -- most significantly, perhaps, the Establishment Clause of the First Amendment of the U.S. Constitution, which forbids the government from giving preference to one religion or religious branch over another. In the words of the complaint filed by the ACLU, “The enforcement of a religious dietary law by criminal statute amounts to an active promotion and recognition of Orthodox Judaism by the State of Georgia and a disfavoring of all other branches of Judaism…”
The complaint gave examples of a number of ways in which Orthodox religious standards varied from those of the non-Orthodox communities, including the disagreement over whether swordfish or sturgeon are kosher (yes, say the Conservatives; nay, according to Orthodox interpretation), whether foods can contain gelatin or rennet, and also on whether wine and dairy products require kashrut supervision. It also noted the many variations in standards that exist between different sects and communities under the umbrella of Orthodox Judaism.
“Whether a food may be certified as kosher is a theological matter and not a legal issue,” argued Rabbi Lewis’ complaint. Yet the existing law, he told the Jewish Telegraphic Agency at the time, meant that “technically I’ve been a criminal since 1980, which I’m not thrilled about.” In fact, charges of violating the Georgia law had never been applied to Lewis or anyone else.
Laws similar to Georgia’s Kosher Food Labeling Act had already been overturned in other states, including New York and New Jersey, and in Baltimore, Maryland. And as State Representative Mike Jacobs, from Atlanta, wrote to his constituents, who include a high proportion of Orthodox Jews, “Every law professor with whom I discussed the issue agreed: That lawsuit was likely to prevail and Georgia’s kosher statutes were likely to be struck down as a result.”
Wanting to avoid that, the state took the pro-active stance of writing a new law that would be agreeable to all interested parties, and not subject to constitutional challenge. The result was House Bill 1345, which instead of pointing to any one kashrut authority as being preeminent, simply requires businesses selling prepared kosher food to disclose who provided the certification and to answer a series of questions regarding the food’s preparation. The filled-in disclosure form would need to be posted at the establishment where it was being sold.
Georgia’s state legislature passed Bill 1345 and Governor Sonny Purdue signed it into law on May 20, 2010. Once that was accomplished, the ACLU and Rabbi Lewis dropped the lawsuit. And, as Rep. Jacobs wrote in his newsletter, the “four very expensive lawyers” from “one of the largest law firms in Atlanta,” who stood to win an award of attorneys’ fees from the state, “went home empty-handed.”