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En Route to Separating Religion and State in Israel

One of the Chief Rabbinate’s two significant monopolies – kashrut, the other being marriage – has now been broken

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A kashrut certificate in a Tel Aviv cafe.
A kashrut certificate in a Tel Aviv cafe. Credit: Eyal Toueg

The High Court of Justice has broken the kashrut monopoly. After 70 years in which the Chief Rabbinate had a monopoly on kashrut – initially de facto, and later de jure as well – this era has ended. Israel’s kashrut industry is en route to being privatized.

From now on, anyone can declare his merchandise kosher, even if he can’t use the word; ludicrously, ownership of that word is the vestige the court left in the Chief Rabbinate’s hands. The ruling was dramatic for the kashrut industry, but it was also a step toward greater separation between religion and state in Israel.

Prior to this ruling, the Chief Rabbinate had a monopoly on Israel’s kashrut industry. For a business to be able to declare itself kosher, it had to receive a kashrut certificate from the Chief Rabbinate. Even if the owner of the business was a God-fearing rabbi who scrupulously observed every commandment in the Torah, he still had to pay the kashrut tax to the local rabbinate in the town where his business was located.

And if the Chief Rabbinate’s kashrut standards didn’t satisfy the owner, leading him to seek supervision from a stricter kashrut organization like the ultra-Orthodox Badatz Eda Chareidis, the rabbinate still remained in the picture. The product or restaurant sign would bear two kashrut certificates, one from the rabbinate and one from the Badatz.

The rabbinate’s monopoly over the kashrut industry was bad in every respect: bad for the rabbinate, bad for kashrut, bad for consumers and bad for the cost of living. The rabbinate’s kashrut system, which was based primarily on local supervision overseen by the local religious council, was a flawed system and often a rotten one, as the state comptroller found over and over again, and as a study we conducted at the Israel Democracy Institute, which will be published soon, also demonstrates.

In many cases, this system doesn’t function, and the level of kashrut it guarantees is low. In other cases, it is simply corrupt. This monopoly is also bad for the cost of living. According to a Finance Ministry study, the excess cost of kashrut imposed by the Chief Rabbinate’s monopoly comes to about 600 million shekels ($170 million) a year.

This monopoly is also bad on the moral plane. First, because instead of local rabbis being engaged with spiritual leadership, many of them are in practice running kashrut industries. Second, in the past, kashrut was an issue of trust, not of paying a government agency. If you trusted the person who was selling you food, you bought from him. The rabbinate’s monopoly has turned kashrut into a product you must consume because there’s a monopoly supplying it.

The High Court’s decision changes the rules of the game. The majority of justices found a way to outsmart the language of the law, as well as the court’s previous interpretation of it, which was handed down just recently. They ruled that indeed, only the Chief Rabbinate can issue a “kashrut certificate,” but any business owner can declare that he observes the laws of kashrut, as long as he also states that he isn’t under the Chief Rabbinate’s supervision.

In other words, the rabbinate retains a monopoly over use of the word “kosher,” but any other wording that says the same thing can be used by any business or supervisory organization. Until yesterday, this was a violation of the law, for which the maximum penalty was a year in prison.

Initially, at least, we can expect an unhealthy chaos. The ruling is expected to lead to the de facto privatization of the industry, in which anyone who wins the consumers’ trust can declare something kosher even without a supervisor from the rabbinate. But this would be a Wild West privatization, because it isn’t accompanied by the formation of any suitable oversight mechanism which would protect consumers who care about kashrut from widespread acts of fraud in this field. Therefore, anyone to whom kashrut is important, including the Chief Rabbinate, must now mobilize to make the industry’s privatization more effective and better supervised.

Nevertheless, the significance of the court’s ruling goes far beyond the kashrut industry, because it deprives the Chief Rabbinate of one of its main practical powers. Of the rabbinate’s two significant monopolies – marriage and kashrut – one has now been broken. Therefore, the Chief Rabbinate has become an even less relevant agency than it already was. From now on, it will be even harder to answer the question of who needs the Chief Rabbinate.

The ruling also has another ramification, which is even more systemic and substantial, for relations between religion and state in Israel. Kashrut was one of the main areas of religious involvement in daily life by a state institution. Over the years, this connection came to seem like a Gordian knot. But the end of the Chief Rabbinate’s monopoly over kashrut effectively separates religion and state in yet another walk of life, and thereby takes us another step – in this case, a welcome one – down the road to separation of religion and state.

Dr. Shuki Friedman is director of the Center for Religion, Nation and State at the Israel Democracy Institute and a member of the law faculty at the Peres Academic Center

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